SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
April 3, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ISAIAH MCCOY, APPELLANT
Appeal from order of Monroe County Court, denying, without a hearing, motion to vacate judgment of conviction for assault, second degree, rendered June 22, 1967.
Goldman, P. J., Witmer, Gabrielli, Moule and Bastow, JJ.
Order unanimously reversed and matter remitted to Monroe County Court for a hearing in accordance with the following Memorandum: On June 1, 1967 defendant pleaded guilty to assault in the second degree in satisfaction of an indictment charging him with the crimes of assault first degree and illegal possession of a weapon. The gravamen of the first count consisted of pointing a loaded revolver at the complainant. No claim is made that defendant fired the alleged weapon. Upon the plea, defendant denied using or having a gun, whereupon the court refused to accept his plea and suggested that defendant further discuss the case with his lawyer "about what the facts of life are here". A few moments later, defendant returned to the court and stated he did have a gun. Upon the present application, defendant contends that upon all the facts his plea was coerced. The allegations of the petition mandate a hearing as to whether defendant's plea was a voluntary act. This, of course, requires an examination of all the surrounding circumstances in order to ascertain whether the plea was the result of a reasoned decision or the product of unreasonable fear and coercion. The hearing should be held before a judge other than the one who presided at the trial, since he is a potential witness at the hearing.
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