Opinion
March 3, 1977
Judgment of conviction, Supreme Court, New York County, rendered April 26, 1976, unanimously affirmed. On the argument, questions were asked by members of the court concerning a subject not raised by the briefs: whether the indictment should have been dismissed in the interest of justice. We find that, though there were some aborted proceedings below, there is no reviewable record on this issue. This determination is therefore without prejudice, should appellant be so advised, to a motion for permission to withdraw the plea of guilty and move for that relief before the sentencing court so that an appropriate record may be developed. (See People v Clayton, 41 A.D.2d 204; CPL 210.40, 210.45. Crim. Proc.) By this disposition we indicate no opinion on these subjects.
Concur — Lupiano, Birns, Capozzoli and Markewich, JJ.; Stevens, P.J., concurs in the result only.