Opinion
October 19, 1981
Appeal by defendant from a judgment of the County Court, Nassau County (Thorp, J.), rendered December 10, 1979, convicting him of criminal sale of a controlled substance in the third degree, upon a plea of guilty, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, plea vacated and case remanded to the County Court, Nassau County, for further proceedings in accordance herewith. The defendant's guilty plea was tendered and apparently accepted with the express understanding that he would be permitted, on appeal, to pursue his claim that the People were not ready for trial within the time limited by CPL 30.30 (cf. People v. Friscia, 51 N.Y.2d 845). In light of the fact that the plea was entered prior to our decision in People v. Thomas ( 74 A.D.2d 317, affd 53 N.Y.2d 338), and given the further fact that the policy of this court, as expressed in that decision (although the Court of Appeals affirmance was on more limited grounds), is adverse to the acceptance of such pleas and to the consideration on appeal of issues purportedly "preserved" in this manner (People v. Thomas, supra, pp 322, 325; see People v. O'Brien, 84 A.D.2d 567) fairness requires that the defendant's conviction be reversed, his plea vacated and the matter remanded in order to give him an opportunity to plead anew (see People v. Thomas, 74 A.D.2d 317, 326, 53 N.Y.2d 338, 344, supra; cf. People v. O'Brien, supra). Mangano, J.P., Rabin, Gulotta and Weinstein, JJ., concur.