Rosenblatt v. Pantaline

• Court: New York Supreme Court
• Writing for the Court: W. VINCENT GRADY
• Citation: Rosenblatt v. Pantaline, 304 N.Y.S.2d 139, 60 Misc.2d 823 (N.Y. Sup. Ct. 1969)
• Decision Date: 11 September 1969
• Parties: Application of Albert M. ROSENBLATT, District Attorney of Dutchess County, for an order under Article 78 of the Civil Practice Law and Rules, Petitioner, v. John PANTALINE, individually and as Village Justice for the Village of Wappingers Falls, New York, and Scott Du Bois, Respondents.

Page 139

304 N.Y.S.2d 139

60 Misc.2d 823

Application of Albert M. ROSENBLATT, District Attorney of Dutchess County, for an order under Article 78 of the Civil Practice Law and Rules, Petitioner, v. John PANTALINE, individually and as Village Justice for the Village of Wappingers Falls, New York, and Scott Du Bois, Respondents.

Supreme Court, Dutchess County.

Sept. 11, 1969.

Albert M. Rosenblatt, Dist. Atty. of Dutchess County, Poughkeepsie, for petitioner.

Vincent Cuccia, Wappingers Falls, for respondent DuBois.

James J. Lyons, Village Attorney, Wappingers Falls, for respondent Pantaline.

W. VINCENT GRADY, Justice.

The District Attorney of Dutchess County seeks by his petition in this article 78 proceeding to vacate, annul and set aside a plea of guilty to Disorderly Conduct made by the respondent DuBois and accepted by the Village Justice of the Village of Wappingers Falls and to reinstate the information charging the respondent DuBois with Criminal Possession of Dangerous Drugs in the fourth degree and a plea of not guilty entered thereupon.

The order to show cause was served on the former attorney for the respondent who objects to such service and contends that the time for appeal having expired, the District Attorney is precluded from proceeding under article 78 of the Civil Practice Law and Rules. Service of a copy of the order to show cause and petition in this proceeding was properly made on respondent DuBois' former attorney since it does not appear that he was ever dismissed by the said respondent and the entry of a judgment of conviction did not end the attorney's authority to receive notice of this proceeding (Marco v. Sachs, 25 Misc.2d 763, 202 N.Y.S.2d 681, affd. 12 A.D.2d 774, 209 N.Y.S.2d 403, rev'd on other grounds, 10 N.Y.2d 542, 226 N.Y.S.2d 353, 181 N.E.2d 392.)

On May 15, 1969, the respondent DuBois appeared with his attorney before the Village Justice of the Village of Wappingers Falls and was allowed to plead guilty to Disorderly Conduct and a fine of $50.00 was imposed. It appears that Captain Joseph Costa, a police officer of the Village of Wappingers, who was the complainant, was present in court when the plea of guilty was accepted. Respondent's former attorney claims that Captain Costa consented to the reduction of the charges. The District Attorney denied this. An issue is therefore raised as to whether Captain Costa was authorized by the District Attorney's office to recommend and consent to the acceptance of the defendant's plea of guilty to Disorderly Conduct.

Respondent DuBois' former attorney contends that appeal is the sole remedy available to the District Attorney and cites the case of People v. Evans, 18 A.D.2d 1018, 239 N.Y.S.2d 80, which held that after entry of a judgment of conviction on defendant's plea of guilty, over the District Attorney's objection, remedy of an appeal is available to the People in order to test the validity of the Judge's determination. The Court distinguished Matter of MacDonald v. Sobel, 272 App.Div. 455, 72 N.Y.S.2d 4, aff'd 297 N.Y. 679, 77 N.E.2d 3, and Matter of Stebbins v. Sherwood, 148 Misc. 763, 266 N.Y.S. 830, aff'd 241 A.D. 615, 269 N.Y.S. 916, in that the decisions reviewed in those cases were made either before or...