People v. Gordon

• Decision Date: 23 February 1981
• Citation: 80 A.D.2d 647,436 N.Y.S.2d 322
• Parties: The PEOPLE, etc., Respondent, v. Eddie GORDON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 322

436 N.Y.S.2d 322

80 A.D.2d 647

The PEOPLE, etc., Respondent, v. Eddie GORDON, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 23, 1981.

William E. Hellerstein, New York City (Brent K. Olsson, Brooklyn, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Peter Weinstein, Asst. Dist. Atty., Brooklyn, of counsel; Adrian Mecz and Suzan Picariello, Brooklyn, on the brief), for respondent.

Before MOLLEN, P. J., and DAMIANI, MARGETT and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

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 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224) (People v. Gordon, 67 A.D.2d 931, 413 N.Y.S.2d 29). Leave to appeal to the Court of Appeals was denied (People v. Gordon, 46 N.Y.2d 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 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, revg People v. Payton, 45 N.Y.2d 300, supra ) decided subsequent to the affirmance by this court (Gordon v. New York, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 255).

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, A.D., 433 N.Y.S.2d 849 (Dec. 15, 1980); see United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; see, also, People v. Gonzalez, App.Div., 436 N.Y.S.2d 293 (decided herewith)). Accordingly, the judgment appealed from should be affirmed.