The People of the State of New York, Respondent, v. Michael Joseph Langfelt, Appellant, 21 A.D.2d 267

McNally, J. Petitioner and two others were indicted February 20,1928 on three counts: robbery in the first degree, assault in the first degree, and grand larceny in the first degree. The indictment arose out of an armed holdup in New York County on the night of January 28, 1928. Petitioner pleaded not guilty and proceeded to trial on March 26, 1928. On the trial petitioner was represented by counsel who in his opening said: ‘ ‘ I was suddenly called into this case the other day.

I knew very little about it. * * * It may develop * * * that the defendant is not mentally all there. ’ ’ The evidence, including petitioner’s testimony, was completed the same day. Both sides rested. Petitioner’s counsel waived summation. On March 27, 1928 petitioner withdrew his not guilty plea and instead pleaded guilty to robbery in the second degree, while armed, to cover all pending indictments. After the change of plea the court stated: “ I know that you [prosecutor] ordinarily would not have recommended robbery in the 2nd degree in this case, nor would I take it.

I hesitated for a long time before taking it. However, I forgot one detail: Does the defendant admit his guilt? Not in this open confession — that stands — by counsel. I don’t want this mental defective to come around and say that he pleaded guilty, but that he was forced to plead guilty. * * * while the defendant is probably a mental defective and therefore the punishment, on the filing of an information for the previous crime, would be substantial, and so long as it can be substantial there is no use in seeking for the jury’s verdict.” Sentence was imposed April 3, 1928.

Petitioner then denied he had pleaded guilty on March 27, 1928. His counsel and the trial court verified the contrary. Petitioner’s denial of his prior plea was dealt with as a motion to withdraw his plea and denied. Thereon the court observed: “ the defendant, in spite of Dr. Lichtenstein’s declaration, in my judgment is not normal, in the sense in my opinion he is a mental defective.

His very conduct in Court, the entire proceedure [sic] indicates that.” Petitioner avers: “ Approximately one month after sentence and committment [sic], petitioner was adjudged insane and transferred to Box A, Dannemora State Hospital for the criminally insane, and, where he remained until found sane in 1942 and recommitted to State Prison.” In the circumstances a hearing should be had as to petitioner’s alleged insanity at the time of his said plea and during the time limited for his appeal from the judgment of conviction. (People v. Jones, 12 N Y 2d 1024; People v. Sprague, 11 N Y 2d 951; People v.

Boundy, 10 N Y 2d 518; People v. Hill, 8 N Y 2d 935.) The order should be reversed, on the law and on the facts, and the cause remanded for a hearing.