People v. Ward
| Decision Date | 03 June 1991 |
| Citation | 174 A.D.2d 589,570 N.Y.S.2d 690 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE, etc., Respondent, v. Jeffrey WARD, Appellant. |
Florence M. Kerner, Huntington, for appellant.
James M. Catterson, Jr., Dist. Atty., Riverhead (Karen Petterson, of counsel), for respondent.
Before BRACKEN, J.P., and KOOPER, LAWRENCE, BALLETTA and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (McInerney, J.), rendered November 13, 1989, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Suffolk County, to afford the defendant the opportunity to withdraw his plea of guilty.
On this appeal, the defendant seeks review of a pretrial evidentiary ruling adverse to him, pursuant to the terms of his plea bargain. Such review is not permissible herein.
Although the court purported to preserve the defendant's right to challenge the ruling on appeal by expressly indicating during the plea proceedings that this right was being reserved, the purported preservation was without effect. As a consequence of his plea of guilty, by operation of law, the defendant has forfeited the right to appellate review of the claim that the conviction should be reversed on the basis of evidentiary error, notwithstanding the court's approval of the defendant's attempted express reservation of this right (see, People v. Campbell, 73 N.Y.2d 481, 486, 541 N.Y.S.2d 756, 539 N.E.2d 584).
Since the defendant is precluded from taking advantage of the full benefit of his negotiated plea, he must be afforded the opportunity to withdraw his plea, if he so wishes (see, People v. DiRaffaele, 55 N.Y.2d 234, 240-241, 448 N.Y.S.2d 448, 433 N.E.2d 513). Accordingly, we reverse the judgment and remit the matter for further proceedings in accordance herewith.
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