People v. Cosme

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ANTON COSME, Respondent

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

Date published: Jan 15, 1991

169 A.D.2d 467 (N.Y. App. Div. 1991)

564 N.Y.S.2d 345

Opinion

January 15, 1991

Appeal from the Supreme Court, Bronx County (Robert L. Cohen, J.).

Defendant was convicted, after trial, of burglary in the second degree and resisting arrest. He testified on his own behalf at trial. The District Attorney's effort to contest defendant's credibility was facilitated because trial counsel turned over a lengthy letter that defendant had written, in confidence, to defense counsel. This single error requires vacatur of the conviction (see, People v Long, 81 A.D.2d 521). Counsel should not have disclosed defendant's confidential communications. The attorney-client privilege was waived neither by defendant's decision to testify (People v Lynch, 23 N.Y.2d 262, 271) nor by the reciprocal discovery rules of CPL 240.30 (People v Damon, 24 N.Y.2d 256; People v Rosario, 9 N.Y.2d 286).

With regard to the People's appeal from the November 1988 sentence imposed upon defendant's guilty plea, we note that this court previously denied a writ of prohibition and dismissed the petition seeking to avoid enforcement of the agreement on the ground that the plea accepted by the court, over the objection of the People, was in respect of less than the full indictment, which comprised 10 counts (Matter of Gentile v Cohen, 144 A.D.2d 1039). The Court of Appeals dismissed a motion for leave to further appeal the matter, ruling that the issues presented had become moot ( 73 N.Y.2d 917). While we agree that vacatur of defendant's conviction upon his CPL 440.10 motion revived all of the counts in the indictment and that, therefore, a plea of guilty should not have been accepted to less than the entire indictment absent the District Attorney's consent (CPL 220.10 [a]), the Criminal Procedure Law does not authorize an appeal of that conviction by the People (see, CPL 450.20). Contrary to the People's argument, the thrust of their appeal is the validity of the underlying conviction, not the legality of the sentence. Thus, CPL 450.20 (4) and 450.30 (2), upon which they rely, do not afford the appropriate remedy.

Concur — Sullivan, J.P., Carro, Wallach and Rubin, JJ.