Van Leer-Greenberg on Behalf of Morris v. Massaro

Decision Date23 May 1995
Docket NumberE,LEER-GREENBER
Citation626 N.Y.S.2d 779,215 A.D.2d 283
PartiesIn re Application of Valerie VANsq., on behalf of George MORRIS, Petitioner, For a Judgment, etc., v. Hon. Dominic R. MASSARO, etc., et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Valerie Van Leer-Greenberg, pro se.

A.H. Saperstein, for respondents.

Before SULLIVAN, J.P., and ELLERIN, KUPFERMAN, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Petition, pursuant to CPLR Article 78, to prohibit respondent, Justice Dominic R. Massaro of the Supreme Court, Bronx County, from sua sponte vacating the guilty plea of defendant George Morris and directing that he proceed to trial, granted, the plea reinstated and the matter remanded to Supreme Court for sentence in accordance with the agreement entered upon the record, without costs.

The defendant was indicted for criminal possession of a weapon in the third degree, a Class D felony pursuant to Penal Law § 265.02(4), and criminal possession of a weapon in the fourth degree, a Class A misdemeanor in violation of Penal Law § 265.01(1).

The Justice presiding dismissed the felony count and on two occasions stated that it had been dismissed. Thereafter, the defendant pleaded guilty to the misdemeanor and after a thorough allocution was informed that the sentence would be three years probation and the sentencing date was set.

At the time of sentence the court stated that the dismissal of a felony count had been in error and that it was reinstated and that the defendant, under the circumstances, could withdraw his plea to the misdemeanor.

The petition asks that the agreed sentence be imposed and that the prosecution for the dismissed count be prohibited.

At the time of the plea the People raised no objection and did not contend that it could not be in full satisfaction of the charge.

The respondent Justice has not appeared in this proceeding. The respondent District Attorney has moved to dismiss the petition on the ground that a writ of prohibition does not lie in the circumstances.

Respondent points to no statutory authority which authorizes a court to withdraw a plea without the consent of the defendant in the absence of fraud and misrepresentation (CPL 220.60[3]. (See, Matter of Lockett v. Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764, 480 N.E.2d 378.)

Although the court's ruling in dismissing the felony count was oral and later, on reflection, it was attempted to be withdrawn, full agreement having been reached prior to the withdrawal, and there being no change in circumstances the defendant was entitled to the benefit of the bargain (see, Matter of Crooms v. Corriero, 206 A.D.2d 275, 614 N.Y.S.2d 511, lv. denied 84 N.Y.2d 809, 621 N.Y.S.2d 519, 645 N.E.2d 1219; Matter of Helbrans v. Owens, 205 A.D.2d 775, 613 N.Y.S.2d 924, app. dismissed 84 N.Y.2d 861, 618 N.Y.S.2d 4, 642 N.E.2d 322).

All concur except SULLIVAN, J.P., and WILLIAMS, J., who dissent in a memorandum by SULLIVAN, J.P., as follows:

SULLIVAN, Justice Presiding (dissenting).

In this CPLR Article 78 proceeding petitioner, on behalf of George Morris, a defendant in a criminal proceeding, seeks, inter alia, to compel respondent, an acting Justice of the Supreme Court of the State of New York, to sentence Morris (hereinafter defendant) to a three-year term of probation in accordance with a plea bargain entered into with respect to defendant's plea of guilty of criminal possession of a weapon in the fourth degree, a misdemeanor, the surviving charge in an indictment. After respondent had orally dismissed the only other count, the felony of criminal possession of a weapon in the third degree, and defendant had pleaded guilty to the remaining charge, respondent realized that he had ruled in error, reinstated the dismissed felony charge, and afforded defendant an opportunity to withdraw his plea.

After being indicted for both offenses, defendant was arraigned and entered a plea of not guilty. He thereafter, as part of an omnibus motion, sought inspection of the grand jury minutes and dismissal of the indictment on the basis of legal insufficiency. After submission of the motion, the court, at a May 10, 1994 calendar call, orally dismissed the felony weapon charge without comment or assigning any reason therefor. At the next calendar call, on June 7, 1994, when petitioner, defendant's attorney, asked for a copy of respondent's decision she was advised that a decision had "probably" been filed with the clerk. The matter was adjourned to August 1, 1994 for a suppression hearing as to the surviving charge.

When the prosecutor appeared before respondent on August 1, 1994, she was informed that defendant was going to plead guilty to the remaining misdemeanor charge and, in response to a request for respondent's written decision, was told that she should have obtained a copy of it. Defendant then, without any objection of record from the prosecutor, withdrew his previously entered not guilty plea and, in exchange for a promised sentence of probation, pleaded guilty to criminal possession of a weapon in the fourth degree, admitting that, on November 9, 1993, he possessed a loaded gun in his waistband.

On the same date, when the prosecutor called respondent's law secretary, asking for a copy of the decision, she was told that the decision was still being prepared but that it would reflect that the evidence before the grand jury was sufficient to sustain the indictment. In fact, in the decision the prosecutor subsequently received, dated July 29, 1994, respondent found the evidence to be sufficient to sustain the indictment and that the grand jury proceedings were not, in any manner, defective.

At the scheduled sentencing on October 21, 1994, respondent, sua sponte and over defendant's objection, reinstated the previously dismissed count charging criminal possession of a weapon in the third degree, explaining that the previous dismissal was "incorrect" and that "[w]hen the matter was reduced to the written decision, [he] realizing [his] own error, corrected [him]self." Respondent then withdrew his earlier decision dismissing the felony count and reaffirmed his July 29, 1994 decision.

Petitioner thereupon commenced this Article 78 proceeding to prohibit respondent from vacating defendant's plea of guilty of the misdemeanor of criminal possession of a weapon in the fourth degree and to compel respondent to sentence defendant in accordance with the terms of the plea bargain. Since petitioner fails to state a cause of action cognizable under Article 78 of the CPLR, the petition should be dismissed.

Analyzing the essence of petitioner's complaint--that the court cannot reinstate the previously dismissed felony count and vacate defendant's misdemeanor guilty plea--it is clear that the court acted within its power and...

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5 cases
  • Morris v. Reynolds
    • United States
    • U.S. District Court — Southern District of New York
    • August 3, 2000
    ...id., ¶ 22. The Appellate Division granted Morris's petition, with two Justices dissenting. See Van Leer-Greenberg ex rel. Morris v. Massaro, 215 A.D.2d 283, 626 N.Y.S.2d 779 (1st Dep't 1995). The majority found that no statutory authority existed permitting the Trial Justice to vacate a gui......
  • Morris v. Reynolds, 98Civ.5439(HB)(AJP).
    • United States
    • U.S. District Court — Southern District of New York
    • May 4, 1999
    ...guilty plea. The First Department granted the petition, with two judges dissenting. In re Van Leer-Greenberg ex rel. Morris v. Massaro, 215 A.D.2d 283, 626 N.Y.S.2d 779 (1st Dept 1995). On March 21, 1996, the New York Court of Appeals reversed and dismissed the Article 78 proceeding. In re ......
  • Morris v. Reynolds, PETITIONER-APPELLANT
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 1, 2000
    ...of the felony. The Appellate Division granted his petition with two judges dissenting. See Van Leer-Greenberg ex rel Morris v. Massaro, 215 A.D.2d 283, 626 N.Y.S.2d 779 (1st Dep't 1995). The state appealed to the Court of Appeals which reversed and dismissed petitioner's Article 78 proceedi......
  • Kaufman v. Ford Motor Co.
    • United States
    • New York Supreme Court — Appellate Division
    • May 23, 1995
  • Request a trial to view additional results

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