People v. Latora

128 A.D.2d 808, 513 N.Y.S.2d 511, 1987 N.Y. App. Div. LEXIS 44494

Opinion

Appeals (1) by the defendant John Latora, from two judgments of the Supreme Court, Kings County (Bonomo, J.), each rendered July 26, 1983, convicting him of attempted coercion in the first degree, criminal mischief in the fourth degree, and conspiracy in the fifth degree under indictment No. 4358/81 and criminal possession of a weapon in the fourth degree, resisting arrest and obstructing governmental administration under indictment No. 4355/81, upon jury verdicts, and imposing sentences, (2) by the defendant Robert Latora, from two judgments of the same court, also rendered July 26, 1983, convicting him of coercion in the first degree, attempted coercion in the first degree, criminal mischief in the fourth degree (two counts), and conspiracy in the fifth degree under indictment No. 4358/81, and attempted coercion in the first degree, resisting arrest, obstructing governmental administration, and criminal possession of a weapon in the fourth degree under indictment No. 4356/81, upon jury verdicts, and imposing sentences, and (3) by the defendant Vincent Latora, from two judgments of the same court, also rendered July 26, 1983, convicting him of burglary in the third degree, coercion in the first degree, attempted coercion in the first degree (four counts), menacing (three counts), criminal possession of a weapon in the fourth degree (two counts), and criminal mischief in the fourth degree (two counts), under indictment No. 4357/81, and coercion in the first degree, attempted coercion in the first degree, criminal mischief in the fourth degree (two counts), and conspiracy in the fifth degree under indictment No. 4358/81, upon jury verdicts, and imposing sentences. These appeals bring up for review an order of the same court (Goldstein, J.), dated November 19, 1982, which granted the People’s motion to vacate the defendants’ prior pleas of guilty.

Ordered that the judgments are affirmed.

Each of the defendants was charged, inter alia, in indictment No. 4358/81, with burglary in the first degree (Penal Law § 140.30), a class B violent felony offense (see, Penal Law § 70.02 [1] [a]). In accordance with a negotiated plea agreement, the defendants were permitted to plead guilty to a single class E felony in full satisfaction of the various indictments and were promised sentences of probation. Prior to sentencing, the court granted the People’s motion to vacate these pleas of guilty as unlawful pursuant to CPL 220.10 (5) (d) (ii), which provides that a plea of guilty in satisfaction of an indictment charging a class B violent felony offense must include at least a plea of guilty to a class D violent felony offense.

Since the acceptance of the pleas was erroneous as a matter of law, and sentence had not yet been imposed (see, People v Bartley, 47 NY2d 965; cf., Matter of Campbell v Pesce, 60 NY2d 165), the pleas of guilty were properly vacated, and the pleas of not guilty reinstated as to all counts in the several indictments. Bracken, J. P., Rubin, Sullivan and Harwood, JJ., concur.