40-e-1 Withdrawal Prior to Sentencing

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

40-E-1. Withdrawal Prior to Sentencing

You may withdraw from a plea bargain that you have already accepted if the plea did not meet the constitutional standards of knowing, voluntary, and intelligent, or if the court in its discretion permits you to withdraw from the guilty plea.¹⁹⁰

If the court does not accept a bargain you have entered with the prosecution, you may be able to withdraw your guilty plea and maintain your right to a trial. In this circumstance, your guilty plea cannot be used as evidence against you during the trial.¹⁹¹ However, certain types of plea arrangements do not allow withdrawal of a guilty plea after sentencing. If you have agreed to a non-binding recommendation for a particular sentence, the court may accept the bargain but decide not to follow the recommendation, and you cannot withdraw the plea at that point.¹⁹²

In New York, you may be able to file a motion to withdraw a guilty plea. To withdraw, a court will first determine why you wish to withdraw the plea.¹⁹³ The courts do not have a specific fact-finding procedure to decide your motion. A limited review may be enough as long as you are given a reasonable opportunity to present your claims.¹⁹⁴ Courts will allow you to withdraw a plea that was not voluntary, knowing, and intelligent.¹⁹⁵ Defendants are also allowed to withdraw a guilty plea if they do not receive the sentence the prosecutor promised to recommend to the judge,¹⁹⁶ if the sentence cannot legally be enforced,¹⁹⁷ if the prosecutor did not have the authority to make the promise,¹⁹⁸ or if the defendant was not adequately informed about the effects of the plea. Courts are not required to allow a defendant to withdraw the plea if the defendant breaches the plea...