Kaplan v. Bell

70 A.D.2d 822, 417 N.Y.S.2d 687, 1979 N.Y. App. Div. LEXIS 12377

Opinions

— Motion by the petitioner seeking to declare unconstitutional certain portions of CPL 220.10, to enjoin vacatur of defendant Bonilla’s plea and to enjoin the trial of Bonilla upon the charge of murder in the second degree, denied and the cross motion to dismiss the petition granted, without costs or disbursements. Petitioner Bonilla was indicted for murder. His plea to the lesser crime of manslaughter in the first, degree was accepted when all involved were under the erroneous impression that Bonilla was 14 years of age. When it was discovered that he was 13 years old, the plea was vacated and Bonilla was directed to stand trial. Under the present statutory structure, a 13 year old may only be criminally responsible for acts constituting murder in the second degree (Penal Law, § 30.00, subd 2), and therefore may not plead guilty to a lesser crime (CPL 220.10, subd 5, par [i]). Petitioner in this article 78 proceeding seeks to compel the trial court to accept his plea to a lesser crime in contravention of the statute. We would entertain a petition to compel a court to perform an act enjoined upon it by law or to prohibit a court from proceeding in excess of its jurisdiction (CPLR 7803). In the case at bar, petitioner seeks to compel a court to act in violation of a presently existing statute, and seeks to review a matter which can adequately be reviewed upon appeal from the final judgment obtained against him (CPLR 7801, subd 1). We find, therefore, that the petition should be dismissed. Concur — Bloom, Lane, Markewich and Silverman, JJ.