           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

362
KA 11-01967
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JESSE C. SMITH, DEFENDANT-APPELLANT.


MEGGESTO, CROSSETT & VALERINO, LLP, SYRACUSE (JAMES A. MEGGESTO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered June 3, 2011. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Supreme Court,
Onondaga County, for proceedings pursuant to CPL 460.50 (5).

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that he was entitled to
specific performance of the original plea agreement. “The remedy of
specific performance in the context of plea agreements applies where a
defendant has been placed in a no-return position in reliance on the
plea agreement . . . , such that specific performance is warranted as
a matter of essential fairness” (People v Sierra, 85 AD3d 1659, 1659,
lv denied 17 NY3d 905 [internal quotation marks omitted]; see
generally People v McConnell, 49 NY2d 340, 348-349). Here, Supreme
Court properly determined that specific performance of the original
plea agreement was not warranted.




Entered:    March 16, 2012                         Frances E. Cafarell
                                                   Clerk of the Court
