The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, Senior District Judge:
On July 9, 1964, petitioner Mosher was sentenced by the County Court of Westchester County as a second felony offender to a term of 40-60 years on a plea of guilty to armed robbery in the first degree. The other three charges made in the indictment were withdrawn.
In 1972, Mosher, after exhausting his state remedies, including a coram nobis proceeding, brought a petition for habeas corpus in this court. He alleged that his plea of guilty was involuntary and that both plea and sentence must therefore be set aside. He contended, first, that the sentencing judge prior to accepting his guilty plea promised that if he pleaded guilty he would receive a minimum sentence which would have been 15-16 years, that he was induced by the promise to plead guilty instead of standing trial, and that the promise was broken when the judge gave him 40-60 years which was tantamount to a maximum sentence. In the alternative, Mosher contended that even if the judge had not made such a promise, his attorney falsely represented to him that the judge had promised to give him a minimum sentence if he pled guilty and he had been induced to plead guilty by his attorney's false assurances.
After an extensive evidentiary hearing, I held that while the sentencing judge had, in fact, made no such promise to Mosher, his attorney had made false representations to him that such a promise had been made by the sentencing judge and that it was these representations which induced him to plead guilty. I therefore held that Mosher's plea was involuntary, and also that he had been denied the effective assistance of counsel in violation of his constitutional rights, 351 F. Supp. 1101 (S.D.N.Y.1972).
I declined to vacate his conviction. Instead, as a remedy, I held that under the unusual circumstances presented:
[A] fair and just solution would be to permit the state courts to determine whether Mosher should be permitted to withdraw his plea of guilty to armed robbery and stand trial for the crimes with which he was charged, or to reduce his sentence to 15-16 years, which was what he expected.
351 F. Supp. at 1112 (footnote omitted). My order of June 8, 1973, granting his petition, so provided.
On January 8, 1974, the Court of Appeals, in a per curiam opinion, affirmed the decision below in all respects. 491 F.2d 1346 (2d Cir.), cert. denied, 416 U.S. 906, 94 S. Ct. 1611, 40 L. Ed. 2d 111 (1974). In so doing, the Court of Appeals said:
[We] hold that the district court did not abuse its discretion, following by analogy Santobello v. New York, supra, 404 U.S. at 263, in fashioning relief here so as to grant to the state courts the option of requiring that Mosher be given the sentence he thought he had bargained for, or permitting him to withdraw his guilty plea and to stand trial on the indictment.
On remand, Mosher, duly represented by Legal Aid counsel, appeared before Judge Dachenhausen of the Westchester County Court on May 3, 1974 and May 8, 1974. Mosher took the position that under the United States District Court decision, he had the right to have his sentence reduced to 15-16 years. After hearing extensive argument by the Westchester County District Attorney on behalf of the People, by Mosher's counsel and by Mosher himself, Judge Dachenhausen refused to exercise one of the two options set forth in my Order of Remand to the state courts, i.e., to reduce Mosher's sentence to 15-16 years. Instead, Judge Dachenhausen exercised the other option granted by my Order which was to permit Mosher to withdraw his plea of guilty and stand trial on the original indictment. The District Attorney of Westchester County advised the Court that he was prepared to proceed with the trial in the event that the guilty plea was withdrawn.
However, Mosher refused to withdraw his plea of guilty or to consent to a retrial and insisted that he was entitled to have his sentence reduced to 15-16 years. He persisted in this refusal and in his insistence that his sentence must be reduced to 15-16 years despite a full and complete explanation to him by Judge Dachenhausen of the two options open to the County Court under my Order of Remand and the right of the County Court to decline to exercise one of them and adopt the other.
After Mosher's final refusal to withdraw his guilty plea and stand retrial and his insistence on a reduction of his sentence to 15-16 years, to which he clearly was not entitled, the County Court, with reluctance, remanded Mosher to serve the balance of the 40-60 year sentence originally imposed. The County Court felt that it should not override Mosher's refusal to withdraw his guilty plea and stand trial by directing that the plea be considered withdrawn, a not-guilty plea entered, and the case retried on the not-guilty plea.* The Court pointed out, among other things, that if the plea of guilty was ...