Opinion
OP 04-02888.
March 18, 2005.
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 prohibit respondents from proceeding to trial against petitioner in the Oneida County Court on indictment Nos. 2003-408 and 2003-049 upon the sua sponte reinstatement of those indictments by respondent Michael E. Daley, Acting Oneida County Court Judge.
Before: Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ.
It is hereby ordered that the petition be and the same hereby is unanimously granted without costs and judgment is granted in favor of petitioner as follows: "It is adjudged that respondent Michael E. Daley, Acting Oneida County Court Judge, is prohibited from reinstating Oneida County Indictment Nos. 2003-408 and 2004-049."
Memorandum: Petitioner commenced this original proceeding pursuant to CPLR article 78 seeking to prohibit his trial in Oneida County Court on indictment Nos. 2003-408 and 2004-049 upon the sua sponte reinstatement of those indictments by respondent Michael E. Daley, Acting Oneida County Court Judge. Both indictments were previously dismissed following petitioner's plea of guilty entered in connection with a third indictment. In a prior original proceeding before this Court, we determined that respondent Daley exceeded his judicial authority when he sua sponte vacated that plea ( Matter of Moran v. Daley, 12 AD3d 1074). Because that plea was entered in satisfaction of all three indictments, the plea reinstated pursuant to our prior directive remains in satisfaction of all three indictments. We therefore grant the petition and grant judgment in favor of petitioner prohibiting respondent Daley from reinstating Oneida County indictment Nos. 2003-408 and 2004-049.