People v. Dishaw , 54 A.D.2d 1122 ( 1976 )

Judgment unanimously affirmed. Memorandum: Following defendant’s arrest on a misdemeanor charge of driving while intoxicated, his attorney was informed by a senior Assistant District Attorney that, based upon defendant’s prior record, the matter would be submitted to a Grand Jury for a felony indictment pursuant to subdivision 5 of section 1192 of the Vehicle and Traffic Law. Subsequently, however, in the Syracuse Traffic Court, an Assistant District Attorney agreed to defendant’s plea of guilty on that charge. The undisputed testimony in the record indicates that at the time of the acceptance of defendant’s plea of guilty, his attorney made affirmative representations to the Assistant District Attorney in Traffic Court that the plea had been specifically authorized by a senior Assistant District Attorney and the representations were relied upon by the assistant. This procurement of a prosecution on a lesser charge does not bar defendant’s subsequent indictment and prosecution for the felony offense (CPL 40.30, subd 2, par [b]) and the court properly held that the misdemeanor conviction must be deemed a nullity. (Appeal from judgment of Onondaga County Court—driving while intoxicated.) Present—Marsh, P. J., Moule, Cardamone, Simons and Goldman, JJ.