People v. Gordon

80 A.D.2d 647, 436 N.Y.S.2d 322, 1981 N.Y. App. Div. LEXIS 10351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1981
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 29, 1977, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence. By order dated February 5, 1979, this court affirmed the judgment, citing People v Payton (45 NY2d 300) and People v Gordon (67 AD2d 931). Leave to appeal to the Court of Appeals was denied (People v Gordon, 46 NY2d 1080). On April 21, 1980 the United States Supreme Court “vacated the judgment” and remanded the case to this court for further consideration in light of Payton v New York (445 US 573, revg People v Payton, 45 NY2d 300, supra), decided subsequent to the affirmance by this court (Gordon v New York, 446 US 903). Judgment affirmed. We reaffirm our previous determination that the rule announced in Payton v New York (supra) should not be applied retroactively (People v Whitaker, 79 AD2d 668; see United States v Peltier, 422 US 531; Desist v United States, 394 US 244; Stovall v Denno, 388 US 293; see, also, People v Gonzalez 80 AD2d 647). Accordingly, the judgment appealed from should be affirmed. Mollen, P.J., Damiani, Margett and Weinstein, JJ., concur.