People v. Delancy

401 N.E.2d 392, 48 N.Y.2d 972, 425 N.Y.S.2d 281, 1979 N.Y. LEXIS 2565

Opinion

OPINION OF THE COURT

Memorandum.

The Appellate Division reversed the judgment, vacated the plea and remanded the case to the County Court for further proceedings. The sole ground for this decision was a finding that the answers elicited by the trial court from the defendant before the acceptance of his guilty plea were insufficient to establish that it was knowingly and voluntarily made. Notably, since the defendant did not object to the plea and made no motion to set it aside, any error in that regard was not preserved (People v Adams, 46 NY2d 1047). It follows that, though the form of the order of the Appellate Division recited that it was “on the law”, the unpreserved nature of the error

compels us to conclude that, in substance, the reversal nevertheless was based, at least in part, on the exercise of discretion (People v Johnson, 47 NY2d 124, 126; cf. People v Cona, 49 NY2d 26, 32-34). Consequently, the appeal to our court does not satisfy the jurisdictional requisite that the order appealed from be one "on the law alone” (see CPL 450.90, subd 2). Dismissal is, therefore, inescapable.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Jasen concurs in result.

Appeal dismissed in a memorandum.