
    The People of the State of New York, Respondent, v. Sixto Diaz, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 30, 1973, convicting him of attempted possession of weapons and dangerous instruments and appliances, as a felony, upon his plea of guilty, and sentencing him to a five-year period of probation. The appeal brings up for review so much of an order of the same court dated May 16, 1973, as, without a hearing, denied defendant’s motion to withdraw his plea of guilty, and a subsequent decision of the same court, rendered May 30, 1973, again denying defendant’s motion to withdraw his plea of guilty. Judgment and order reversed, on the law and as a matter of discretion in the interests of justice, and motion to withdraw plea of guilty granted. The 27-year old defendant came to the United States mainland from Puerto Rico in 1965 and has no prior criminal record. He was indicted for possession of weapons as a felony, the possession not being in his home or place of business. The felony complaint indicates the alleged possession took place at an identified location in the Borough of Queens. Defendant subsequently pled guilty to attempted possession of a dangerous weapon as a felony. One month after the change of plea, and prior to sentencing, defendant moved to withdraw his plea of guilty, alleging that he resided in the named premises and was therefore at most guilty of weapons possession as a class A misdemeanor (Penal Law, § 265.05, subds. 2, 3). The information elicited from him at the time of the change of plea and the testimony at the hearing on the motion to withdraw his plea of guilty cast doubt upon his guilt of the crime to which he offered to plead guilty or of any other felony. Under the circumstances of this case, it was an improvident exercise of discretion to deny the motion to withdraw the guilty plea (People v. Serrano, 15 N Y 2d 304; People v. Lederhilger, 41 A D 2d 569; People v. Smith, 42 A D 2d 974). Hopkins, Acting P. J., Martuscello, Cohalan, Brennan and Munder, JJ., concur.  