
    The People of the State of New York, Respondent, v. Albert Francis Eckert, Appellant.
   Memorandum: Defendant, upon a plea of guilty to burglary third degree, was sentenced to two and one-half to five years, to be served concurrently with the unexpired portion of a prior sentence. A subsequent habeas corpus proceeding properly held the original sentence irregular and defendant was remanded for resentencing. Upon appearing for resentenee, defendant attempted to withdraw his plea of guilty, which was denied, and he was resenteneed to two and one-half to five years, to be served after service of the unexpired portion of his prior sentence. Defendant urges that his plea of guilty was induced by promise of the District Attorney that if he would so plead he would receive a sentence to run concurrently with the unexpired portion of his prior sentence and that inasmuch as this was improper he was entitled to withdraw his plea of guilty. Upon this direct appeal from the judgment upon resentence all the questions are raised including whether such a promise was made and whether he should have been permitted to withdraw his guilty plea. Without passing upon the merits of defendant’s claim the circumstances here presented require a full hearing as to whether any promise or representation was made which did in fact cause defendant to plead guilty. (People v. Guarglia, 303 N. Y. 338; People v. Sullivan, 276 App. Div. 1087.) The plea of guilty should stand, but in the interest of justice and in the exercise of proper discretion the judgment insofar as it imposed sentence should be reversed and a hearing had. After the hearing the trial court should then, in the light of the testimony there adduced, again pass upon defendant’s motion to withdraw his plea of guilty. (Appeal from judgment of resentence of Allegany County Court, entered pursuant to order in habeas corpus subsequent to a plea of guilty to charge of burglary, third degree.) Present — Williams, P. J., Bastow, Goldman, Halpem and Henry, JJ.  