People v. Rodriquez 90 A.D.2d 489

Appeal by defendant from a judgment of the County Court, Westchester County (Battisti, J.), rendered April 15, 1981, convicting him of attempted criminal possession of a controlled substance in the fourth degree, upon a plea of guilty, and imposing sentence. Case remanded to the County Court, Westchester County, to hear and report on defendant’s application to withdraw his plea of guilty, and appeal held in abeyance in the interim. The discretion to permit a defendant to withdraw his guilty plea at any time prior to the imposition of sentence derives from CPL 220.60 (subd 3). The court, except under special circumstances, should either grant the application or make a reasonable inquiry to determine whether the application has merit (cf. People v Frederick, 45 NY2d 520; People v Mangini, 82 AD2d 940). In this instance, the defendant sought to withdraw his guilty plea at the time of sentencing on the ground that he had not committed a felony. The sentencing court improperly denied defendant’s motion without first affording him a reasonable opportunity to advance his claim. We determine, however, that defendant’s contention that his plea was not knowingly and voluntarily entered is without merit (cf. People ex rel. Woodruff v Mancusi, 41 AD2d 12, app dsmd 34 NY2d 951). Thompson, J. P., Bracken, Rubin and Boyers, JJ., concur.