People v. Boyce

• Decision Date: 08 May 1989
• Citation: 540 N.Y.S.2d 746,150 A.D.2d 471
• Parties: The PEOPLE, etc., Respondent, v. Keith BOYCE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 746

540 N.Y.S.2d 746

150 A.D.2d 471

The PEOPLE, etc., Respondent, v. Keith BOYCE, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

May 8, 1989

Steven J. Kosstrin, Hempstead, for appellant. Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Sholom J. Twersky; Robyn Grabelshy Nir on the brief), for respondent.

Appeal by defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered October 15, 1986, convicting him of grand larceny in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. On September 22, 1986 the defendant appeared in the Supreme Court, Kings County, and pleaded guilty to the crime of grand larceny in the second degree. The defendant's attorney stated, with the concurrence of the Assistant District Attorney, that the plea was not intended to constitute a waiver of the defendant's right to appellate review of a prior order of the Supreme Court, which had vacated a previously entered plea of guilty under the same indictment. The Court then imposed a prison sentence which is lengthier than that which had been agreed to in connection with the previous plea. The defendant's subsequent plea of guilty, upon which the judgment appealed from is based, constituted a forfeiture of his right to appellate review of the earlier order of the Supreme Court which vacated his prior guilty plea (see, People v. Guerrero, 140 A.D.2d 456, 528 N.Y.S.2d 329). Furthermore, the defendant's attempt to preserve the right to appellate review of this issue is of no effect (see, People v. O'Brien, 56 N.Y.2d 1009, 453 N.Y.S.2d 638, 439 N.E.2d 354, affg. 84 A.D.2d 567, 443 N.Y.S.2d 255; People v. Howe, 56 N.Y.2d 622, 450 N.Y.S.2d 477, 435 N.E.2d 1092). If the defendant wishes to withdraw his subsequent plea of guilty on the basis that it was induced by a mistaken belief that he had preserved his right to appellate review of this issue, the proper procedure is by way of post-judgment motion (see, People v. O'Brien, supra; People v. Montanus, 90 A.D.2d 992, 456 N.Y.S.2d 907). We do not choose to exercise our interest of justice jurisdiction in the particular circumstances of this case (cf., People v. Thomas, 74 A.D.2d 317, 326, 428 N.Y.S.2d 20, affd. 53 N.Y.2d 338, 441 N.Y.S.2d 650, 424 N.E.2d 537).

MANGANO, J.P., and THOMPSON, BRACKEN and EIBER, JJ., concur.