People v. Green 17 A.D.2d 896

Order unanimously reversed and matter remitted to Steuben County Court for a hearing in accordance with the memorandum: Memorandum: Appellant claims that he was informed by the District Attorney on his arraignment that he was charged in the second count of the indictment with unauthorized use of a motor vehicle and that his plea of guilty to the second count was made without knowledge that a charge of larceny was contained therein. The second count of the indictment charges grand larceny in the first degree in violation of section 1293-a of the Penal Law. Although both the stenographer’s and Clerk’s minutes of June 15, 1956 and August 6, 1956 recite that defendant pleaded not guilty to the first count and guilty to the second count, the judgment recites that he was convicted by plea of guilty of the crime of grand larceny in *897the second degree. In view of the confusion in the records as to whether defendant was convicted of grand larceny in first or in the second degree and as to whether his plea was based upon a misunderstanding of the crime to which his plea was made, a hearing should be had at which all relevant records may be introduced and examined and witnesses heard upon the matters alleged in the petition. It should be noted that there are no allegations in his petition which support his claim on this appeal that he should also be heard on the question of his mental capacity at the time of his arraignment. (Appeal from order of Steuben County Court denying a motion to vacate a judgment of conviction for grand larceny, second degree.) Present — Bastow, J. P., Goldman, McClusky and Henry, JJ.