Van Leer-Greenberg on Behalf of Morris v. Massaro

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: KAYE
• Citation: Van Leer-Greenberg on Behalf of Morris v. Massaro, 642 N.Y.S.2d 618, 87 N.Y.2d 996, 665 N.E.2d 188 (N.Y. 1996)
• Decision Date: 21 March 1996
• Docket Number: LEER-GREENBERG
• Parties: , 665 N.E.2d 188 In the Matter of Valerie VAN, on Behalf of George MORRIS, Respondent, v. Dominic R. MASSARO, as Justice of the Supreme Court, Bronx County, et al., Appellants.

Page 618

642 N.Y.S.2d 618

87 N.Y.2d 996, 665 N.E.2d 188

In the Matter of Valerie VAN LEER-GREENBERG, on Behalf of George MORRIS, Respondent, v. Dominic R. MASSARO, as Justice of the Supreme Court, Bronx County, et al., Appellants.

Court of Appeals of New York.

March 21, 1996.

[87 N.Y.2d 997] Robert T. Johnson, District Attorney of Bronx County, Bronx (Allen H. Saperstein, Joseph N. Ferdenzi and Peter D. Coddington, of counsel), appellant pro se.

Valerie Van Leer-Greenberg, New York City, respondent pro se.

OPINION OF THE COURT MEMORANDUM.

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

The CPLR article 78 prohibition proceeding sought (1) to bar respondent Trial Justice from sua sponte vacating defendant Morris's guilty plea, and (2) to compel the Trial Justice to impose the promised sentence on a misdemeanor conviction based on the plea.

Defendant was indicted in December 1993 on a class D felony count of criminal possession of a weapon in the third degree (Penal Law § 265.02[4], and a class A misdemeanor count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1]. He moved to dismiss the indictment for legal insufficiency of the Grand Jury evidence. Although no formal decision was rendered on the motion, the Trial Justice, on two different pretrial court appearances, announced from the Bench that the felony charge was dismissed.

Based on this premise, the trial court accepted a plea of guilty from defendant on August 1, 1994 to the misdemeanor charge and agreed to impose a sentence of three years' probation. Sometime thereafter, the Trial Justice filed a written decision, dated July 29, 1994, denying the motion to dismiss and, thus, sustaining the felony count of the indictment. On October 21, 1994, the sentencing date, he also orally advised the parties that the felony count was reinstated and offered defendant the opportunity to withdraw the guilty plea to the misdemeanor count. Defendant refused. On December 6, 1994, defense counsel initiated the instant collateral prohibition proceeding as petitioner on behalf of her client in the criminal proceeding.

The Appellate Division, with two Justices dissenting, granted the petition and remanded the case "for sentence in accordance with the agreement entered upon the record." As the two-Justice dissent was on a question of law, we need not answer the question certified by the Appellate Division's grant of leave...