—Judgment affirmed without costs. Memorandum: During the trial of this motor vehicle accident case, Supreme Court properly refused to permit cross-examination of defendant concerning a vacated plea of guilty to a violation of Vehicle and Traffic Law § 1110 (a), failure to obey a traffic control device, relying on People v Spitaleri (9 NY2d 168).
The broad and forceful language of that decision, that “ ‘[t]he effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught’ ” (People v Spitaleri, supra, at 172, quoting Kercheval v United States, 274 US 220, 224), supports the court’s evidentiary ruling. The dissent contends that Spitaleri applies only to criminal cases. Spitaleri involved a trial in the same criminal case in which the plea had been withdrawn.
Here, the issue arises in a separate case and the issue of finality of a disposition of another court is implicated.
Unlike the situation presented in Ando v Woodberry (8 NY2d 165), which held that a guilty plea to a traffic offense is admissible in a civil action for damages but that the defendant may explain his plea so that the jury may decide whether to give it any weight, the rule advocated by the dissent would require the defendant in this civil action not only to explain his vacated plea but also to persuade the jury that Geneva City Court ruled correctly in granting his CPL 440.10 motion to vacate the judgment of conviction.
A jury should not be permitted to evaluate the validity of the vacatur of a judgment by a court of competent jurisdiction. In short, it is an issue of law, not of fact. 955 The dissent’s concern that an affirmance in this case would violate public policy exhibits a cynical view of the way courts treat such matters. The fact that this is the first recorded case of this kind militates against such concern. All concur except Wisner and Boehm, JJ., who dissent and vote to reverse in the following Memorandum.
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