In People v Grey (2009 NY Slip Op 03570 [4th Dept 5/1/09]), the Appellate Division, Fourth Department reversed a conviction because the plea was based on a mutual mistake. Specifically, the
record establishes that Supreme Court erroneously assured defendant that he would retain the right to appeal with respect to the propriety of the court’s refusal to dismiss the indictment based on the denial of defendant’s right to testify before the grand jury pursuant to CPL 190.50 (5), and defendant relied on that erroneous assertion. We thus agree with defendant that the court abused its discretion in denying his motion because, in fact, the contention of defendant that he was denied his right to testify before the grand jury was forfeited by the plea (citations omitted).
