People v. Giarratano

62 A.D.2d 1042, 404 N.Y.S.2d 127, 1978 N.Y. App. Div. LEXIS 11115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1978
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered January 27, 1977, convicting him of criminal sale of a controlled substance in the fifth degree, upon a plea of guilty, and imposing sentence. Judgment reversed, on the law, indictment dismissed and case remitted to the Supreme Court for the purpose of entering an order in its discretion pursuant to CPL 160.50. In the light of the uncontested proof that the testimony before the Grand Jury related solely to the sale of a controlled substance, cocaine, and that the substance involved was in fact lidocaine, which is not a controlled substance, it was error to accept a plea of guilty to the crime of criminal sale of a controlled substance. Under the circumstances, the judgment of conviction must be reversed and the indictment dismissed. We note also that the defendant has served the 10 days’ incarceration imposed upon him. Martuscello, J. P., Damiani, Shapiro and O’Connor, JJ., concur.