
    The People of the State of New York, Respondent, v. Richard Dixon, Appellant.
    Argued June 7, 1971;
    decided July 6, 1971.
    
      Stephen Lee Crystal for appellant.
    This court has in no uncertain terms ruled that where, as here, a defendant has pleaded guilty but has not yet been sentenced and has promptly stated his innocence, the trial court must not impose sentence but must either allow the plea to be withdrawn or conduct a hearing to determine whether the application has merit. (People v. McKennion, 27 N Y 2d 671; People v. Nixon, 21 N Y 2d 338.)
    
      Frank S. Hogan, District Attorney (T. James Bryan, Michael B. Juviler and Lewis B. Friedman of counsel), for respondent.
    Defendant, having pleaded guilty to a lesser crime to avoid the rigors of trial, was not entitled to withdraw his plea merely because of Ms unsupported claim of innocence. (People v. Serrano, 15 N Y 2d 304; Brady v. United States, 397 TJ. S. 742; United States ex rel. Broion v. La Vallee, 424 F. 2d 457; People v. Phillips, 27 N Y 2d 892; People v. Saunders, 28 N Y 2d 196; People v. Brown, 7 N Y 2d 359, 365 U. S. 821; People v. Nixon, 21 N Y 2d 338; People v. Beasley, 25 N Y 2d 483; People v. Etheridge, 29 A D 2d 679; People v. Davis, 18 N Y 2d 859.)
   Memorandum.

Judgment affirmed. Defendant, having pleaded guilty with a codefendant to a reduced charge of assault in the second degree following a robbery, sought to withdraw his guilty plea. This case is distinguishable from People v. McKennion (27 NY 2d 671). In the latter case, we remitted for a hearing, following the denial of defendant’s application to withdraw his plea of guilty based on his allegation that he “ misunderstood and misapprehended” the plea proceedings in pleading guilty to the criminal possession of drugs found in his apartment. The defendant in McKennion was a 22-year-old immigrant with a limited education facing deportation charges resulting from the criminal charges and represented by the same counsel at the sentencing, when he sought to withdraw his plea, as had represented him in the earlier proceeding. In contrast, in the case at bar, the court upon receiving the request from the defendant to withdraw his guilty plea, appointed new counsel to represent him and directed him to prepare the moving papers. In a sworn affidavit in support of the motion, defendant stated he was innocent and that he pleaded guilty only because his first attorney advised him he had no chance of proving his innocence. Additionally, he stated his present attorney has advised him that he has a good defense. No factual matter was presented in support of these assertions. Thus, the court had before it only the unsupported allegations of the defendant and was confronted solely with an issue of credibility. That issue was resolved against the defendant when the court denied the motion to withdraw the guilty plea. Defendant, with a record of 12 prior convictions, did not contend that his plea was the result of mistake or misunderstanding as contended in McKennion (supra) nor does he contend that it was not made voluntarily following consultation with his first attorney. (See People v. Nixon, 21 N Y 2d 338; cf. People v. Serrano, 15 N Y 2d 304; People v. Beasley, 25 N Y 2d 483.)

Moreover, the plea minutes show that defendant not only accepted the plea but also admitted his participation with his codefendant in the robbery and the assault which followed. The minutes also show that the admission of guilt was not accompanied by any protestations of innocence. (Cf. North Carolina v. Alford, 400 U. S. 25.) A defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors including defendant’s numerous prior convictions, the likelihood of eyewitness testimony confronting him at a trial and the hope of a reduced charge and sentence. (Brady v. United States, 397 TJ.s£>. 742, 756-757.) Under the circumstances of this case, the denial of the motion to withdraw the guilty plea was not an abuse of discretion. (Code Crim. Pro., § 337; People v. Phillips, 33 A D 2d 893, affd. 27 N Y 2d 892.)

Bergan, J. (dissenting).

A Judge before whom a plea of guilty has been taken should not routinely proceed to impose sentence on a man who under oath asserts that he is innocent of the charge and his previous plea was entered under misapprehension.

He should at least pause long enough to find out what the facts are. This is the clear holding of People v. McKennion (27 N Y 2d 671) which is not distinguishable because McKennion was more knowledgeable or less knowledgeable about criminal procedure than this defendant. The common issue in the two cases is the truth or falsity of assertions of innocence before judgment.

The memorandum of the court states that the present appellant did not contend ‘ that his plea was the result of mistake or misunderstanding”. His affidavit, however, states that he pleaded guilty “ solely because counsel to the Legal Aid Society told me to do so because I had no chance of proving my innocence ’ ’ but that his present court-appointed counsel told him “ have a good and adequate defense ”.

There is something abhorrent about sentencing a man while he is asserting his innocence and misapprehension as to an earlier plea.

If he is lying, the Judge can ascertain this; determine it quickly enough, and deny the application.

The criminal law does not sit helplessly when confronted with the mendacity or strategy of defendants; but an assertion of innocence before judgment ought not just be ignored. The decision in People ex rel. Brown v. La Vallee (29 NY 2d 581, decided herewith) is distinguishable because in that case there was a full factual inquiry into the plea and the effort to withdraw it.

The judgment should be reversed and a proper inquiry directed.

Judges Burke, Scileppi, Breitel and Jasen concur in memorandum ; Judge Bergan dissents and votes to reverse in a separate opinion in which Chief Judge Fuld and Judge Gibson concur.

Judgment affirmed in a memorandum.  