754 N.E.2d 193, 729 N.Y.S.2d 434
Court of Appeals of the State of New York.
Decided June 7, 2001
APPEAL, by permission of a justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered November 28, 2000, which (1) reversed, on the law, a judgment of the Supreme Court (Harold Rothwax, J.), rendered in New York County, convicting defendant, upon his plea of guilty, of assault in the first degree, and (2) remitted the matter to Supreme Court.
Page 841
ROBERT M. MORGENTHAU, District Attorney of New York County, New York City (CAROL A. REMER-SMITH of counsel), for appellant.
Legal Aid Society, New York City (FRANK J. LOSS of counsel), for respondent.
Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur in memorandum.
MEMORANDUM.
The order of the Appellate Division should be reversed, and the case remitted to that court for further proceedings in accordance with this memorandum.
Because defendant failed to timely move to withdraw his guilty plea pursuant to CPL 220.60 (3), his claim that his guilty plea should be vacated has not been preserved as a question of law for review. The Appellate Division erroneously concluded that a question of law was preserved. Accordingly, the case must be remitted to the Appellate Division to allow that court to exercise its broader review power.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.
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