Opinion
March 23, 1992
Appeal from the County Court, Suffolk County (Tisch, J.).
Ordered that the order is affirmed insofar as appealed from.
CPL 40.30 (2) (b) provides that a subsequent prosecution is not barred by a previous prosecution "for a lesser offense than could have been charged under the facts of the case [if] the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for the greater offense" (see, Corbin v Hillery, 74 N.Y.2d 279, affd sub nom. Grady v Corbin, 495 U.S. 508). We find that the County Court properly concluded that the defendant did not "procure" his conviction of violations of the Babylon Town Code within the meaning of CPL 40.30 (2) (b). While the record indicates that the defendant pleaded guilty to the Babylon Town Code violations at a time when he was aware that an indictment charging him with more serious offenses was pending, his conduct in pleading guilty cannot be equated with procuring the Babylon Town Code prosecution (see, People v Snyder, 99 A.D.2d 83). Moreover, the Suffolk County District Attorney's alleged ignorance of the Babylon Town Code prosecution was apparently caused by a lack of coordination between the District Attorney and the Babylon Town Attorney, and not by any affirmative act or misrepresentation on the part of the defendant (see, Corbin v Hillery, supra; cf., People v Dishaw, 54 A.D.2d 1122). Accordingly, the defendant's prosecution for assault by operating a vessel in the second degree (see, Navigation Law § 49 [b] [2]) is barred (see, People v Claud, 76 N.Y.2d 951, supra). Mangano, P.J., Bracken, Sullivan and Eiber, JJ., concur.