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PEOPLE STATE NEW YORK v. DENNIS J. SMITH (04/14/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 14, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DENNIS J. SMITH, APPELLANT

Judgment of the County Court, Nassau County, rendered May 22, 1968, affirmed.

Beldock, P. J., Munder, Martuscello and Kleinfeld, JJ., concur; Benjamin, J., dissents and votes to reverse the judgment and to vacate the plea of guilty.

No opinion.

Benjamin, J., dissents and votes to reverse the judgment and to vacate the plea of guilty, with the following memorandum:

 Before the trial court accepted defendant's change of plea to one of guilty, it asked him whether he understood that under the plea he would be eligible to a sentence of one year in the Nassau County Jail. Defendant answered affirmatively. However, he was sentenced to a reformatory period not to exceed four years. He had not been informed by the court of the possibility of the imposition of such a sentence. I would reverse the judgment and reinstate the indictment, as defendant may well have believed that the maximum term to which he could have been imprisoned was one year (see People v. Emerick, 29 A.D.2d 770).

19690414

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