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IN RE: JON E. BUDELMANN, DISTRICT ATTORNEY OF CAYUGA COUNTY, PETITIONER, v. HON. THOMAS G. LEONE, COUNTY COURT JUDGE, CAYUGA COUNTY, AND ADAM C. SMITH, RESPONDENTS.
MEMORANDUM AND ORDER
Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b][1] ) to, inter alia, vacate the guilty plea of respondent Adam C. Smith.
It is hereby ORDERED that said petition is unanimously dismissed without costs.
On the merits, we dismiss the petition. The extraordinary remedy of mandamus “ ‘is never granted for the purpose of compelling the performance of an unlawful act’ “ (Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 388, quoting Matter of People ex rel. Sherwood v State Bd. of Canvassers, 129 N.Y. 360, 370), and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant's objection, a plea taken in contravention of CPL 220.10 or related statutory provisions (see People v. Moquin, 77 N.Y.2d 449, 452–455, rearg. denied 78 N.Y.2d 952; Matter of Kisloff v. Covington, 73 N.Y.2d 445, 450–452; Matter of Campbell v. Pesce, 60 N.Y.2d 165, 167–169; see also People v. Antonelli, 250 A.D.2d 999, 1000; People v. Donnelly, 176 A.D.2d 404, 405). Indeed, absent extrinsic fraud, “[i]n no instance ha[s the Court of Appeals] recognized a court's inherent [or statutory] power to vacate a plea and sentence over defendant's objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment” (Campbell, 60 N.Y.2d at 169). Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10(4)(a) after the commencement of sentence.
Furthermore, “restor[ing] the matter to its pre-plea status,” as petitioner seeks, would violate defendant's constitutional protections against double jeopardy (see Moquin, 77 N.Y.2d at 455; Kisloff, 73 N.Y.2d at 452; Campbell, 60 N.Y.2d at 169; People v. Sanders, 89 AD3d 106, 110–111, lv. denied 18 NY3d 861). Contrary to petitioner's contention, CPL 40.30(3) “does not aid the analysis of the double jeopardy issue” (Moquin, 77 N.Y.2d at 455). The Court of Appeals has held that a plea taken without the People's consent is not a nullity for purposes of that provision (see id. at 454 n 2; Sanders, 89 AD3d at 108–111).
Frances E. Cafarell
Clerk of the Court
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Docket No: OP 14–00279
Decided: November 14, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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