People v. Miller

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BOBSY MILLER, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 20, 1996

224 A.D.2d 639 (N.Y. App. Div. 1996)

639 N.Y.S.2d 50

Opinion

February 20, 1996

Appeal from the Supreme Court, Kings County (Demarest, J.).

Ordered that the judgment under Indictment No. 3753/91 is reversed, on the law, and a new trial is ordered; and it is further,

Ordered that the judgment under Indictment No. 6140/91 is affirmed.

We agree with the defendant that the trial court improperly excluded his children from the courtroom merely because they were under 12 years of age. This denied the defendant his right to a public trial and the conviction under Indictment No. 3753/91 must be reversed ( see, People v. Gutierez, 86 N.Y.2d 817; see also, People v. Parrish, 224 A.D.2d 553).

We reject the defendant's contention that his plea of guilty to Indictment No. 6140/91 must be vacated. At the plea proceedings on August 27, 1992, the defendant specifically acknowledged that he was waiving the right to appeal from the judgment under Indictment No. 6140/91, while he was still retaining the right to appeal his conviction under Indictment No. 3753/91. Therefore, it was clear that the defendant was aware at the time he pleaded guilty that there was a possibility that his conviction under Indictment No. 3753/91 might be reversed. The defendant is not entitled to an opportunity to withdraw the plea of guilty merely because the conviction under Indictment No. 3753/91 is being reversed ( cf., People v. Clark, 45 N.Y.2d 432). Bracken, J.P., Miller, Sullivan and Florio, JJ., concur.