People v. Campana 40 A.D.2d 833

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered February 29, 1972, convicting him of attempted burglary in the third degree, upon his plea of guilty, and sentencing him to an indeterminate prison term of not more than three years, to run concurrently with a sentence imposed upon him by the County Court, Nassau County, on or about January 28, 1972. Judgment affirmed. No opinion. Latham, Acting P. J., Gulotta, Christ and Brennan, JJ., concur; Shapiro,' J., dissents and votes to reverse and to remand the case to the County Court for further proceedings not inconsistent with the following memorandum: I think defendant should have been given the right to withdraw his plea of guilty. The record is susceptible of a proper belief on defendant’s part that the County Court, Suffolk County, would give him a sentence to run concurrently with another sentence about to be imposed by the County Court, Nassau County, which was expected to be an indeterminate sentence, the maximum of which would be three years. Actually, the Nassau court imposed a sentence of one year. Under the circumstances, the instant indeterminate sentence, with the maximum of three years’ confinement, imposed by the Suffolk court, raised a doubt which should be resolved in defendant’s favor. Defendant should, there*834fore, be permitted to withdraw his plea of guilty and proceed to trial, if he so desires.