Opinion
May 26, 1981
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 17, 1980, convicting him of sexual abuse in the first degree, upon his plea of guilty, and imposing sentence. Judgment affirmed and case remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd 5). We reaffirm our previous determination that the rule announced in Payton v New York ( 445 U.S. 573, revg People v Payton, 45 N.Y.2d 300) should not be applied retroactively (People v Whitaker, 79 A.D.2d 668; People v Gordon, 80 A.D.2d 647; People v Gonzalez, 80 A.D.2d 647; see United States v Peltier, 422 U.S. 531; Desist v United States, 394 U.S. 244; Stovall v Denno, 388 U.S. 293). Rabin, J.P., Cohalan, Weinstein and Thompson, JJ., concur.