People v. Jovet

41 A.D.2d 608, 340 N.Y.S.2d 409, 1973 N.Y. App. Div. LEXIS 5216

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1973
• Status: Published

Opinion

Order, Supreme Court, Bronx County, entered April 30, 1972, which,' inter.' alla, vacated a prior order of said court setting aside a judgment of conviction, unanimously reversed, on the law and as a matter of discretion in the interest of justice, and defendant’s not guilty plea reinstated. Defendant, was indicted for murder, assault and related crimes in connection with the fatal shooting of one person and the wounding of another following a family quarrel. He was permitted to plead guilty to manslaughter in the ' first degree and, on May 7,. 1971, was sentenced to' an indeterminate term.of . imprisonment not -to exceed twelve years. Subsequently, defendant moved, ■ pursuant to CPL 440.10, to vacate said judgment of- conviction on the grounds .that the indictment, was based upon the perjured testimony of two witnesses and that his attorney had withheld certain information from him. The motion was granted, the judgment vacated and defendant granted leave to. withdraw his guilty plea. . One day after defendant .'entered a not guilty plea, the People moved for reargument. The sentencing court, though noting the District Attorney’s .“ dereliction’’ in failing ■ to ■ call. to the. court’s .attention, certain facts, known' to it at the time of the prior motion, granted reargument) held its \ prior order in abeyance and directed a hearing thereon. After conclusion of. such hearing, the prior order of said court and the ■ not- guilty .plea entered .pursuant to.leave granted thereby were vacated; and defendant was remanded tó prison'to serve the sentence previously imposed. While there appears, to .be some authority for holding that a motion for reargument lies in a criminal; Case despite the absence of' any statutory authority therefor- {People ex. rel. Imbruglia V. Jackson,■ 8 A D 2d 651), we conclude that it should not have been. granted under the circumstances of this case.. In oiir view; once the judgment.' ■of conviction was vacated, the guilty plea withdrawn and a not' guilty plea entered, the prior plea and the judgment rendered thereon was beyond reinstatement. ' (Cf. 'Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Spitaleri, 9 N Y 2d 168.) Moreover, and in any event, since it appears, that defendant (who claims- to have never before been arrested for or convicted of any crime ■and who has bufa meagre command of the English language) denied culpabil--. ity at the hearing and was not advised of the existence of an exculpatory affidavit' by one' of the recanting grand jury witnesses at the time- of his original plea of. guilt, the ends.of. justice would be better served-by permitting him. to . withdraw the same. Appeal from judgment, Supreme Court) Bronx County,rendered May 7, 1971 unanimously dismissed, as moot, in light of our decision on appeal, decided simultaneously herewith. ' Concur— Stevens, P. J., McGivern; Markewich, Murphy and Tilzer, JJ.