Himelein v. Nenno

168 A.D.2d 957, 564 N.Y.S.2d 909, 1990 N.Y. App. Div. LEXIS 16511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1990
• Status: Published

Opinion

Judgment unanimously reversed on the law without costs, plea vacated and matter remitted to Salamanca City Court for further proceedings on the information, in accordance with the following memorandum: Supreme Court erred in dismissing the Cattaraugus County District Attorney’s CPLR article 78 petition to vacate a judgment of driving while impaired entered upon a plea of guilty by respondent Deboy before respondent Judge Nenno. The plea was accepted in satisfaction of an information charging Deboy with driving while intoxicated and related traffic offenses. The court stated that it accepted the plea because a member of the District Attorney’s office did not attend a Saturday session of the court and did not then object to defense counsel’s assertion that the arresting officer would consent to a reduced plea. However, at a pretrial conference, the Assistant District Attorney told the court and defense counsel that his office would not agree to a reduced plea and the case would have to proceed to trial.

Prohibition is appropriate in this case because the court exceeded its powers by reducing the charges without the express consent of the District Attorney (see, Matter of Cosgrove v Kubiniec, 56 AD2d 709; Matter of Blumberg v Lennon, 44 AD2d 769). Accordingly, the judgment is reversed, the plea of guilty to driving while impaired vacated and the information reinstated. On this record we perceive no compelling reason to grant the portion of the petition requesting remittal to a Judge other than respondent Nenno. (Appeal from judgment of Supreme Court, Cattaraugus County, Sprague, J.—art 78.) Present—Dillon, P. J., Callahan, Doerr, Green and Law-ton, JJ.