Opinion
April 14, 1986
Appeal from the County Court, Nassau County (Collins, J.).
Order dated July 24, 1984 affirmed, insofar as appealed from.
The record does not support the defendant's claim that his guilty plea was specifically conditioned on the preservation of his right to review on appeal the denial of his motion to dismiss the indictment. In any event, the defendant had an opportunity to make this argument before this court (People v. Levin, 85 A.D.2d 933) and before the Court of Appeals on his direct appeal from his conviction but he failed to do so. We cannot sustain his argument that the affirmance of his judgment of conviction by the Court of Appeals (People v. Levin, 57 N.Y.2d 1008, rearg denied 58 N.Y.2d 824) violated the alleged conditional plea. Equally unavailing is the defendant's contention that the alleged plea arrangement was frustrated by the decision in People v. Thomas ( 74 A.D.2d 317, affd 53 N.Y.2d 338), rendered three months after the entry of his plea, which held, inter alia, that conditional pleas will not be sanctioned. This court's determination in People v. Thomas ( 74 A.D.2d 317, supra), which the Court of Appeals affirmed, albeit on more narrow grounds, was rendered nearly one year prior to defendant's entry of his guilty plea. Therefore, vacatur of the defendant's guilty plea is not warranted in order to preserve any principles of fundamental fairness (see, People v. O'Brien, 84 A.D.2d 567, affd 56 N.Y.2d 1009; cf. People v. Quinones, 84 A.D.2d 568).
Finally, there is no indication that People v. Valenza ( 60 N.Y.2d 363) was intended to overrule People v. Levin (supra). We have recently rejected, upon similar facts, the argument asserted by the defendant premised upon the decision in People v. Valenza (supra), to wit, that the larceny count of the indictment upon which the defendant's guilty plea is predicated is jurisdictionally defective (see, People v. Salvato, 111 A.D.2d 773; People v. Cesare, 111 A.D.2d 764). Thompson, J.P., Bracken, Weinstein and Kunzeman, JJ., concur.