PEOPLE v. DENNIS

S.C.I. No. 179/14, 2014-11145.

2017 NY Slip Op 01883

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSONE DENNIS, Appellant.

Appellate Division of the Supreme Court of New York, Second Department.


Attorney(s) appearing for the Case

N. Scott Banks , Hempstead, NY ( Jeremy L. Goldberg of counsel), for appellant.

Madeline Singas , District Attorney, Mineola, NY ( Daniel Bresnahan and Pamela Kelly-Pincus of counsel), for respondent.

Before: Reinaldo E. Rivera, J.P., Leonard B. Austin, Sheri S. Roman, Jeffrey A. Cohen, JJ.


Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Spergel, J.), rendered May 9, 2014. By decision and order of this Court dated June 1, 2016, the matter was remitted to the Supreme Court, Nassau County, to afford the defendant an opportunity to move to vacate his plea of guilty in accordance therewith, and for a report on any such motion. The appeal was held in abeyance pending receipt of a report from the Supreme Court. The Supreme Court has now filed an order dated September 27, 2016.

DECISION & ORDER

ORDERED that on the Court's own motion, the order dated September 27, 2016, is vacated; and it is further,

ORDERED that the matter is remitted to Supreme Court, Nassau County, for the issuance of a report, forthwith, without any accompanying order, advising only whether the defendant moved to vacate his plea of guilty, and if so, whether he made the requisite showing or failed to make the requisite showing required pursuant to People v Peque (22 N.Y.3d 168); and it is further,

ORDERED that the appeal shall continue to be held in abeyance pending receipt of the Supreme Court's report.

The decision and order of this Court dated June 1, 2016, remitted the matter to the Supreme Court, Nassau County, for the limited purpose of affording the defendant an opportunity to move to vacate his plea of guilty in accordance therewith, and for a report on any such motion. Upon remittitur, the court erroneously issued an order, in effect, granting that motion and vacating the plea of guilty. This exceeded the scope of this Court's directive contained in the decision and order dated June 1, 2016. Accordingly, we must again remit the matter to the Supreme Court, Nassau County, for the issuance of a report, without any accompanying order, specifically limited to and advising only whether the defendant moved to vacate his plea of guilty, and if so, whether he made the requisite showing or failed to make the requisite showing required pursuant to People v Peque (22 N.Y.3d 168). There are no other matters to be considered by the court upon remittitur.

RIVERA, J.P., AUSTIN, ROMAN and COHEN, JJ., concur.


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