Van Leer-Greenberg v. Massaro , 626 N.Y.S.2d 779 ( 1995 )

Petition, pursuant to CPLR article 78, to prohibit respondent, Justice Dominic R. Massaro of the Supreme Court, Bronx County, from sua sponte vacating the guilty plea of defendant George Morris and directing that he proceed to trial, granted, the plea reinstated and the matter remanded to Supreme Court for sentence in accordance with the agreement entered upon the record, without costs.

The defendant was indicted for criminal possession of a weapon in the third degree, a Class D felony pursuant to Penal Law § 265.02 (4), and criminal possession of a weapon in the fourth degree, a Class A misdemeanor in violation of Penal Law § 265.01 (1).

The Justice presiding dismissed the felony count and on two occasions stated that it had been dismissed. Thereafter, the defendant pleaded guilty to the misdemeanor and after a thorough allocution was informed that the sentence would be three years probation and the sentencing date was set.

At the time of sentence the court stated that the dismissal of a felony count had been in error and that it was reinstated and that the defendant, under the circumstances, could withdraw his plea to the misdemeanor.

The petition asks that the agreed sentence be imposed and that the prosecution for the dismissed count be prohibited.

At the time of the plea the People raised no objection and did not contend that it could not be in full satisfaction of the charge.

The respondent Justice has not appeared in this proceeding. The respondent District Attorney has moved to dismiss the petition on the ground that a writ of prohibition does not lie in the circumstances.

Respondent points to no statutory authority which authorizes a court to withdraw a plea without the consent of the defendant in the absence of fraud and misrepresentation (CPL 220.60 [3]; see, Matter of Lockett v Juviler, 65 NY2d 182).

Although the court’s ruling in dismissing the felony count was oral and later, on reflection, it was attempted to be withdrawn, full agreement having been reached prior to the withdrawal, and there being no change in circumstances the defendant was entitled to the benefit of the bargain (see, Matter of Crooms v Corriero, 206 AD2d 275, Iv denied 84 NY2d 809; Matter of Helbrans v Owens, 205 AD2d 775, appeal dismissed 84 NY2d 861). Concur—Ellerin, Kupferman and Tom, JJ.