SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
October 30, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JACK FLORENCE, APPELLANT
Appeal from order of Monroe County Court denying motion to vacate judgment of conviction for robbery, first degree, rendered January 28, 1965.
Del Vecchio, J. P., Marsh, Gabrielli, Moule and Bastow, JJ.
Memorandum: Petitioner claims that he pleaded guilty to one count of a five count indictment after a conference with an Assistant District Attorney in which he was told the remaining counts would be dismissed. While the Assistant District Attorney named in the petition denies having any conversation at all with petitioner, another Assistant District Attorney states that petitioner's understanding as to dismissal of the remaining counts was correct and was the result of conferences with petitioner's attorney. However, there is nothing in the record before us showing dismissal of these counts by the court. Petitioner is entitled to either a dismissal of these counts or a hearing as to the validity of his plea. Petitioner's other contentions as to the validity of his plea are without merit. He contends that his plea was invalid since he did not plead guilty to a named crime as required by section 333 and subdivisions 1 and 2 of section 334 of the Code of Criminal Procedure. However, he did not plead guilty to a lesser crime but to one of the counts of the indictment. Consequently, the filing of a statement recommending acceptance of the plea pursuant to section 342-a of the Code of Criminal Procedure was not necessary.
Order unanimously reversed and hearing directed unless an order of Monroe County Court dismissing the remaining four counts of the indictment is made and entered within 20 days after entry of the order to be made herein.
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