SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 7, 1969
THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT,
MACK CLARK, APPELLANT
Defendant appeals from an order of the Supreme Court, Kings County, entered December 12, 1966, which denied, after a hearing, his application for a writ of error coram nobisto vacate a judgment, rendered on May 19, 1966, convicting him, upon his plea of guilty, of assault in the second degree, and sentencing him thereon, as if the offense were a misdemeanor, to a term of 2 1/2 to 3 years in Sing Sing Prison.
Christ, Brennan, Rabin and Benjamin, JJ., concur; Beldock, P. J., dissents and votes to affirm the order.
In our opinion, the record adequately established that the trial court, upon taking defendant's plea of guilty, stated that it would treat the plea as a misdemeanor, if defendant were a first offender and would not send him to Sing Sing Prison. The sentence meted out to defendant of 2 1/2 to 3 years in State's Prison did not conform to the then authorized punishments for misdemeanors, namely, imprisonment by definite sentence up to one year or confinement upon an indeterminate term not exceeding three years. Hence, the sentence imposed upon defendant was not the equivalent of the misdemeanor sentence promised by the court, although it was undisputed that defendant was a first offender. Christ, Brennan, Rabin and Benjamin, JJ., concur; Beldock, P. J., dissents and votes to affirm the order.
Order reversed, on the law and the facts; application granted and case remitted to the Criminal Term for repleading to the indictment and for further proceedings not inconsistent herewith.
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