Fernandez v. Silbowitz

• Decision Date: 01 November 1977
• Citation: 398 N.Y.S.2d 896,59 A.D.2d 837
• Parties: Application of Luis FERNANDEZ, Petitioner, v. Honorable Irwin SILBOWITZ, Justice of the Supreme Court of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 896

398 N.Y.S.2d 896

59 A.D.2d 837

Application of Luis FERNANDEZ, Petitioner, v. Honorable Irwin SILBOWITZ, Justice of the Supreme Court of the State of New York, Respondent.

Supreme Court, Appellate Division, First Department.

Nov. 1, 1977.

H. Perlmutter, New York City, for petitioner.

J. B. Mullady, New York City, for respondent.

Before KUPFERMAN, J. P., and BIRNS, CAPOZZOLI and LANE, JJ.

MEMORANDUM DECISION.

In this Article 78 proceeding seeking a writ of prohibition, the petition is unanimously granted, without costs and without disbursements, to the extent of annulling the court's action in vacating, sua sponte, the defendant's pleas of guilty to manslaughter in the first degree under Indictment Nos. 1877/76 and 859/77 over objection of defendant, the said pleas reinstated and the matters remanded to the trial court to afford defendant an opportunity to withdraw his pleas of guilty or to permit his pleas to stand and for sentence thereon, pending which the trial of the indictment is stayed and prohibited and in the event defendant withdraws said pleas that both indictments proceed to trial.

Petitioner seeks dual relief: (1) to mandate enforcement of an alleged prior plea bargain, and (2) to prohibit retrial.

The parties agreed to a stay pending determination of this proceeding.

Petitioner was indicted for murder in the first degree under Indictment Nos. 1877/76 and 859/77, each involving a separate, unrelated homicide. On March 16, 1977 he pleaded guilty to manslaughter in the first degree in each case. In accepting defendant's pleas, the court stated that after discussion with defense counsel and the District Attorney, "probation report permitting", he would sentence defendant to an indeterminate prison term of three to nine years on each indictment, the sentences to run concurrently (Plea Minutes, March 16, 1977, p. 4). The negotiations covered both indictments.

On June 24, 1977, the adjourned date for sentence, the court read into the record the following excerpt with reference to Indictment No. 859/77 from the supplemental probation report it had received, which disclosed a factual basis for a possible defense of self-defense: "Fernandez now admits his guilt. He states that he and the deceased, Hector Perez, had an argument about 'a problem we had' . . . and he and I had a conversation because of a woman, an argument arose from that. Before he killed me I killed him. He put his hand in his belt and I was more agile and I pulled out a gun first . . . ." (Minutes, June 24, 1977, p. 3.)

After defendant in open court confirmed that he had made the statement, the court sua sponte, over defendant's objection, vacated the plea (Minutes, June 24, 1977, pp. 4-5), stating: "Mr. Fernandez, I cannot accept the plea. This plea does not constitute an admission to murder (sic)." (Minutes, June 24, 1977, p. 5.)

The record is ambiguous as to whether the court set aside the plea to Indictment No. 859/77 only or to both indictments (Minutes, June 24, 1977, pp. 3-5). However, the question is academic, as the court, in the absence of fraud (of which there is no allegation in the record) has no inherent power to vacate a plea without defendant's consent. Accordingly, the vacatur was invalid. (People v. Murphy, 53 A.D.2d 530, 384 N.Y.S.2d 180; People v. Damsky, 47 A.D.2d 822, 366 N.Y.S.2d 13; Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425.)

Instead of vacating defendant's pleas as aforesaid, it was appropriate for the court on June 24, 1977 to have afforded defendant the following options: (1) to withdraw his pleas, in view of the...