Campbell v. Pesce ( 1982 )

— In a proceeding pursuant to CPLR article 78 to prohibit the further prosecution of petitioner for acts that were the subject of a prior plea and sentence, petitioner appeals from a judgment of the Supreme Court, Kings County (Moskowitz, J.), dated February 23, 1982 which denied the petition.- Judgment affirmed, without costs or disbursements. Criminal Court acted properly in vacating petitioner’s guilty plea, which had been accepted in violation of CPL 180.50 (subd 2, par [b]) (see People u Bartley, 60 AD2d 283, affd 47 NY2d 965; People v Minaya, 54 NY2d 360), and his subsequent indictment on new charges was not in violation of principles of double jeopardy. Petitioner’s argument that there was an implicit finding of no reasonable cause to believe he had committed an armed felony was directly refuted by the court’s acknowledged failure to even consider CPL 180.50 (subd 2, par [b]). The failure to designate the felony complaint as an armed felony complaint, as required by CPL 100.15 (subd 4), did not negate the mandate of CPL 180.50 (subd 2, par [b]). Weinstein, J. P., Gulotta, O’Connor and Rubin, JJ., concur.