
    The People of the State of New York, Respondent, v Albert Bennett Petgen, Appellant.
    Argued March 29, 1981;
    decided May 11, 1982
    
      POINTS OF COUNSEL
    
      E. Stewart Jones, Jr., and Robert M. Cohen for appellant.
    I. Judge Battisti’s order violated the well-settled rule that a Judge cannot overrule the determination of another Judge of co-ordinate jurisdiction. (Matter of Dondi v Jones, 40 NY2d 8; People v Jenkins, 39 AD2d 924; People v Solomon, 91 Misc 2d 760; People v Bauer, 36 AD2d 888; People v Canna, 35 AD2d 1062; People v La Placa, 17 AD2d 766; People v Tartt, 71 Misc 2d 955; George W. Collins, Inc. v Olsker-McLain Inds., 22 AD2d 485.) II. Judge Battisti’s order violated the law of the case doctrine. (Martin v City of 
      
      Cohoes, 37 NY2d 162; People v Watson, 57 AD2d 143; Duane Sales v Carmel, 57 AD2d 1003; Matter of Marocco v State of New York, 56 AD2d 949; Fadden v Cambridge Mut. Fire Ins. Co., 51 Misc 2d 858, 27 AD2d 487; Matter of McGrath v Gold, 36 NY2d 406; Dain & Dill v Betterton, 39 AD2d 939; George W. Collins, Inc. v Olsker-McLain Inds., 22 AD2d 485.) III. It was an abuse of discretion for Judge Battisti to deny defendant’s motion to extend time to seek suppression. (People v Huelin, 85 Misc 2d 139; People v Egan, 72 AD2d 239; People v Frigenti, 91 Misc 2d 139; People v Thomas, 47 NY2d 37; People v Jenkins, 73 AD2d 694; People v Wyssling, 82 Misc 2d 708; People v Solomon, 91 Misc 2d 760.) IV. Original counsel’s failure to make the suppression motions constitutes ineffective assistance of counsel. (People v Crump, 53 NY2d 824; People v Brown, 45 NY2d 852; People v Brown, 40 NY2d 381; People v Rivera, 107 Misc 2d 544; People v Detling, 73 AD2d 937; People v Ramos, 53 AD2d 703; People v Primo, 69 AD2d 890; People v Donald R. E., 53 AD2d 780; People v Roff, 67 AD2d 805; People v Bell, 48 NY2d 933.)
    
      Seymour Meadow, District Attorney (Michael O’Brien of counsel), for respondent.
    I. Reargument of defendant’s application granted by one Judge was properly before a Judge of co-ordinate jurisdiction. (People v Calhoun, 49 NY2d 398; People v Yarter, 41 NY2d 830; People v Young, 48 NY2d 995; Matter of Cheryl B. v Alfred W. D., 99 Misc 2d 1085; People v Jenkins, 39 AD2d 924; People v Garofalo, 71 AD2d 782, 49 NY2d 879; People v Reap, 68 AD2d 964; Matter of Wright v County of Monroe, 45 AD2d 932; Kamp v Kamp, 59 NY 212; People v Whitridge, 144 App Div 493.) II. The order on reargument superseded the prior order. (Aridas v Caserta, 41 NY2d 1059; Bonilla v Reeves, 49 Misc 2d 273; Foley v Roche, 68 AD2d 558; Simpson v Loehmann, 21 NY2d 990; Tonkonogy v Seidenberg, 63 AD2d 587; Rosemont Enterprises v Irving, 49 AD2d 445; Weiss v Nathan, 30 AD2d 856; Dennis v Stout, 24 AD2d 461; Mutual Life Ins. Co. of N. Y. v 160 East 72nd St. Corp., 272 App Div 48.) III. The denial of defendant’s untimely application for an evidentiary hearing before trial was not an abuse of discretion. (People v Turner, 49 NY2d 925; People v Stafford, 79 AD2d 435; People v McCall, 17 NY2d 152; 
      People v Bostic, 97 Misc 2d 1039; People v Weaver, 49 NY2d 1012; People v Glen, 30 NY2d 252; People v Schultz, 40 AD2d 690; Feuerstein v People of N. Y., 515 F Supp 573; People v Ganci, 27 NY2d 418, 402 US 924; People v L. B. Smith, Inc., 108 Misc 2d 261.) IV. Defendant’s claims of ineffective assistance of counsel are not supported by the record and must be considered waived by his plea. (People v Thomas, 53 NY2d 338; People v Lewis, 46 NY2d 825; People v Brown, 45 NY2d 852; People v Raco, 72 AD2d 857; People v De Mauro, 48 NY2d 892; People v Rivera, 73 AD2d 528; People v Pascale, 48 NY2d 997; People v La Ruffa, 37 NY2d 58, 423 US 917; People v Lynn, 28 NY2d 196; Menna v New York, 423 US 61.)
   OPINION OF THE COURT

Jones, J.

An order denying an application for permission to make a late motion to suppress, as distinguished from an order denying a motion to suppress on the merits, does not come within the scope of CPL 710.70 (subd 2), and accordingly the right to appellate review thereof is forfeited by a guilty plea. Likewise such a plea, entered on advice of competent counsel, constitutes a forfeiture of a claim of prior ineffective assistance of counsel on the part of a former attorney where the full measure of the asserted derelictions of the first attorney were known to the second attorney who nonetheless counseled acceptance of the plea.

Johnny Marmo was shot and killed on December 14, 1977. Defendant and his son were indicted on charges of manslaughter in the first degree. They were convicted in April, 1979 after a trial in which one attorney represented both of them.

In consequence of an allegedly improper search conducted by the police after the Marmo incident, defendant had alsó been charged individually in a separate 45-count indictment with one count of alleged unlawful disposition of a machine gun, one count of alleged possession of marihuana, and 43 counts of possession of various weapons. This indictment, returned February 16, 1978, led to the conviction which is the subject of the present appeal.

At defendant’s arraignment on the 45-count indictment on March 8, 1978, pursuant to CPL 710.30 the People served notice of their intention to offer in evidence on trial oral statements made by defendant to a police officer on December 14, 1977. Defendant’s then counsel, who was also representing him on the manslaughter charge, took no action with respect to that notice, and the 45-count indictment lay dormant until after defendant had been convicted on the manslaughter charge. Defendant’s present counsel, brought in to represent him on the appeal from his conviction for manslaughter (which conviction was reversed at the Appellate Division on the ground that defendant had been deprived of his constitutional right to assistance of counsel by reason of the joint representation of both defendant and his son by the same attorney [People v Richard MM., 75 AD2d 389]), first learned of the present charges in September, 1979. At his request County Court put the case over to permit the substitute counsel to familiarize himself with the case. Communications with defendant’s prior attorney having been unproductive, finally on December 14, 1979 counsel obtained a copy of the 45-count indictment from the District Attorney and was then informed that no motions, had been made and accordingly no suppression hearing held.

The normal statutory period of 45 day's within which to make a motion to suppress having long since expired, on January 7, 1980 counsel made an application, pursuant to CPL 710.40 (subd 2), for permission to file a late suppression motion and for other relief. On January 25, 1980 Judge Fromer of Greene County Court granted permission to file the late motion to suppress. The District Attorney then sought reargument before Judge Battisti of the same court, and on February 8,1980, based in part on representations by the District Attorney that Judge Fromer had disqualified himself from hearing the case, Judge Battisti granted reargument and on réargument denied the application for permission to file the late motion to suppress. One week later defendant entered a plea of guilty to the first count in full satisfaction of the 45-count indictment.

On appeal from his resulting conviction the Appellate Division affirmed, rejecting defendant’s contentions that, as a Judge of co-ordinate jurisdiction, Judge Battisti had no authority to grant reargument, that in any event it was error to have denied defendant’s application to file a late motion to suppress, and that defendant was denied effective assistance of counsel by his first attorney, all on the merits. We affirm but on a different rationale.

We conclude that by his plea of guilty defendant forfeited his right to appellate review of the contentions he now presses on us. The right to appellate review of the denial of a motion to suppress is preservéd notwithstanding a guilty pléa only in consequence of express statutory provision (CPL 710.70, subd 2). Defendant’s application for permission to file a late motion to suppress, however, is to be distinguished from a motion to suppress. The granting of that application depended on a factual determination that, “owing to unawareness of facts constituting the basis thereof or to other factors, the defendant did not have reasonable opportunity to make the motion previously” (CPL 710.40, subd 2); it did not involve consideration or denial of the merits of the constitutional contentions which defendant might later have asserted on a motion to suppress had permission been granted him to make such a motion. Accordingly, his right to appeal from the denial of his application did not survive his plea of guilty under the provisions of CPL 710.70 (subd 2).

Nor does defendant’s assertion in this case that he was denied effective assistance of counsel survive his plea. There is no suggestion that, aside from the asserted default of the first attorney in failing to make a suppression motion, the acceptance of the plea was infected by any ineffective assistance of counsel. Defendant’s replacement counsel, confronted with the fact that his application for permission to make a late motion to suppress had been denied, was fully aware of all the asserted derelictions of the first attorney and, by reason of his own unquestioned competence and experience as attorney for th^ defense, was fully qualified to make a seasoned assessment of defendant’s claims in the circumstances and of the likelihood of their judicial acceptance. In this instance it cannot be said that any ineffective assistance of counsel vitiated defendant’s plea of guilty premised as it was on advice of counsel (as to which there is now no suggestion of incompetency) comprehending, inter alia, the very claims of ineffective assistance of counsel that defendant now urges on us.

For the reasons stated, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). Respectfully, I dissent. The majority ignores the facts that in denying defendant’s motion to suppress, Judge Battisti reversed the order of a Judge of co-ordinate jurisdiction, Judge Fromer, who had granted defendant a suppression hearing. Because the Battisti order was made without authority, was apparently based upon the statement (which court records demonstrate to have been incorrect) that Judge Fromer had disqualified himself, and was expressly stated to be the predicate for defendant’s guilty plea, I would reverse the order of the Appellate Division and remit the matter to the County Court with directions to permit defendant to withdraw his plea if he be so advised and to proceed with the suppression hearing ordered by Judge Fromer subject, however, to a renewed motion for reargument by the People addressed to Judge Fromer with respect to that order.

Judge Battisti, to whom the People’s motion for reargument was addressed, made no finding that Judge Fromer had disqualified himself. Rather he considered the suppression question as an original matter and not on the basis of reargument of Judge Fromer’s order, for his reasoning was “I was assured by your office you would be ready to try this. Now, I’m faced with a suppression hearing. I’m not going to grant.”

He was not asked to grant and the issue before us is not whether he exercised his discretion properly, but whether he had the authority to review Judge Fromer’s prior grant made, in the exercise of discretion. As a Judge of coordinate jurisdiction he could neither ignore nor overrule Judge Fromer’s order granting a hearing on defendant’s suppression motion. He could act only if, on a reargument motion addressed to Judge Fromer, the latter disqualified himself. To reason as did the Appellate Division majority that, without any attempt to ascertain from Judge Frqmer whether he had in fact disqualified himself and without any finding of disqualification, Judge Battisti could withdraw the right to a suppression hearing previously granted by Judge Fromer is simply to ignore the rule firmly embedded in the law, that a Judge of co-ordinate jurisdiction has no authority to sit in review of a colleague’s order.

Moreover, the District Attorney’s statement, upon which the Appellate Division relied, was inconsistent with the fact, for as shown by court records of which judicial notice can be taken, Judge Fromer presided in other later, matters concerning defendant, which he would not have done (nor indeed would he have made the original order granting a suppression hearing) had he disqualified himself.

The record is clear that Judge Battisti’s refusal to allow a suppression hearing was the basis of defendant’s plea, for defendant’s attorney stated when the plea was entered that the prior not guilty plea was being withdrawn “in view of the denial of our application for permission to file suppression motions and to conduct the suppression hearing” and reiterated at sentence that defendant “entered a plea of guilty having been effectively deprived of all of his pretrial rights” to which Judge Battisti responded that “if you desire to appeal that suppression hearing you are perfectly entitled to do it.”

It is, therefore, incorrect to characterize the Battisti order, as the majority does (p 532), as an “order denying an application for permission to make a late motion to suppress”. It was rather an unauthorized order taking away from defendant the suppression hearing already granted and the right of appeal from denial on the merits that would have been defendant’s under CPL 710.70 (subd 2) had that hearing resulted in denial of his motion to Suppress. Correctly described the order is well within the scope and intent of that subdivision, though technically not itself an order denying a motion to suppress.

There was, therefore', no forfeiture of defendant’s right to appeal. Simply put, the only question is whether Judge Battisti had authority to reverse Judge Fromer’s order or was required by it to proceed with the suppression hearing. He did not have such authority and defendant’s plea having been entered solely because he was improperly deprived of the suppression hearing previously granted to him, defendant should be given back his plea (cf. People v Thomas, 53 NY2d 338, 344) without prejudice to a proper motion by the People to reargue Judge Fromer’s order granting a hearing, if they be so advised.

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur with Judge Jones; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Fuchsberg concurs.

Order affirmed. 
      
      . (CPL 710.40, subd 1; 255.20, subd 1.),
     
      
      . CPL 710.70 (subd 2) provides: “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.”
      Even if we were to accept the dissenter’s characterization of Judge Battisti’s order of February 8,1980 as “an unauthorized order taking away from defendant the suppression hearing already granted” (dissent, p 537), that would not change the consequence to be attached to his guilty plea. However characterized, and whether or not authorized, the order did mot constitute a disposition on the merits of the motion to suppress and accordingly did not come within the preservative shelter of subdivision 2.
     
      
      . Indeed it may be persuasively argued that even if there were but one attorney, if the ineffective assistance of counsel did not infect the plea bargaining process itself, the defendant, having admitted commission of the criminal act by his guilty plea, should be held to have forfeited any claim of ineffective assistance of counsel not directly involved in the plea bargaining process.
     
      
       No issue of ineffectiveness of counsel is involved in Judge Battistj’s ruling, though the ineffectiveness of defendant’s original counsel, who not only made no motion ■ to suppress but also “lost” the file, was apparently involved in Judge Fromer’s order.
     