Opinion
March 7, 1994
Appeal from the County Court, Suffolk County (Sherman, J.).
Ordered that the appeal is dismissed.
The defendant was charged with three counts of murder in the second degree (felony murder, intentional murder and depraved indifference murder) after he raped and killed an acquaintance. He subsequently pleaded guilty to the entire indictment without the People's consent. Prior to sentencing, the County Court dismissed the intentional murder count on the ground that it was inconsistent with the depraved indifference murder count. The defendant was sentenced on the remaining two counts and has begun serving his term of imprisonment.
We agree with the People's contention that the County Court erred in dismissing the intentional murder count, as the requirements of CPL article 300 with respect to inconsistent counts do not apply to guilty pleas (see, e.g., People v Walton, 41 N.Y.2d 880). However, under the circumstances of this case, the People's appeal should be dismissed (cf., People v Kaplan, 191 A.D.2d 712). The Supreme Court vacated the defendant's plea of guilty to the intentional murder count, and this Court lacks the authority to reinstate the plea and may only reinstate the count (see, People v. Reap, 68 A.D.2d 964). The defendant has commenced serving his sentence, therefore the plea and sentence on the other counts cannot be vacated at the People's request (see, People v. Moquin, 77 N.Y.2d 449; see also, Matter of Campbell v. Pesce, 60 N.Y.2d 165; People v. Donnelly, 176 A.D.2d 404), and the People would be precluded on double jeopardy grounds from prosecuting the defendant for intentional murder were that count reinstated (see, People v. Moquin, supra; People v. Donnelly, supra). Moreover, the defendant did not seek to vacate the plea on his direct appeal, and his judgment of conviction was affirmed (see, People v. Thompson, 202 A.D.2d 456 [decided herewith]). Therefore, although the People's claim has merit, no corrective action can be taken. Balletta, J.P., O'Brien, Ritter and Florio, JJ., concur.