People v. Paluska

Appeal from a judgment of the County Court of Tioga County (Siedlecki, J.), rendered May 25, 1984, convicting defendant upon his plea of guilty of the crime of possession of a controlled substance in the third degree.

Defendant was indicted and charged with possession of a controlled substance in the third degree. He made a motion to suppress. At the same time, he was under indictment for a drug-related charged in Chemung County. Before the motion to suppress was heard, defendant chose to plead guilty. At that time, a suppression hearing was being conducted in the Chemung County action. The parties stipulated on the record that, should defendant’s motion to suppress in Chemung County be granted, he would be allowed to withdraw his plea and proceed with his motion to suppress in Tioga County. The suppression motion in Chemung County was denied, but we have reversed such denial on appeal (People v Paluska, 109 *599AD2d 389. Defendant now appeals, seeking reversal and an opportunity to withdraw his plea. While the District Attorney may well be correct that defendant’s proper means of obtaining this relief is a motion to County Court to vacate the conviction (CPL 440.10) rather than an appeal, in the interest of judicial economy, we reverse the judgment of conviction and vacate defendant’s guilty plea.

Judgment reversed, on the facts, defendant’s guilty plea vacated and matter remitted to the County Court of Tioga County for further proceedings not inconsistent herewith. Mahoney, P. J., Kane, Main and Weiss, JJ., concur; Casey J., dissents and votes to affirm in the following memorandum.

In view of my dissent in the case arising from defendant’s conviction in Chemung County (People v Paluska, 109 AD2d 389), I would affirm the conviction in this case.