Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rappaport, J.), rendered September 27, 2002, convicting her of attempted assault in the first degree, upon her plea of guilty, and imposing sentence.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON and JOHN M. LEVENTHAL PLUMMER E. LOTT, JJ.
ORDERED that the judgment is reversed, on the law, the defendant's plea is vacated, and the matter is remitted to Supreme Court, Kings County, for further proceedings on the indictment.
On June 5, 2002, during her plea allocution, the defendant stated that she arrived at her home to find her ex-boyfriend and the complainant "removing stuff" from her apartment. The defendant stated that a struggle ensued, she stabbed the complainant with a knife, and that she was "scared" during the incident. Near the conclusion of the allocution, the prosecutor objected, stating "It is not satisfactory to the People, your Honor. She's indicated she did it because she was scared, she indicated that --." However, before the prosecutor could complete her statement, the court replied, "Who cares about scared. She stabbed her. I'll accept the plea."
On appeal, the defendant contends that she should be permitted to withdraw her plea of guilty, inter alia, because her allocution was inconsistent with the crime of attempted assault in the first degree and suggested that she had a justification defense.
In order to be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently (see People v Hill, 9 NY3d 189, 191; People v Fiumefreddo, 82 NY2d 536, 543). Where a defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea, the trial court has a duty to inquire further to ensure that defendant's plea of guilty is knowing and voluntary (see People v Lopez, 71 NY2d 662, 666). Here, a review of the entire factual recitation during the defendant's plea allocution raises the possibility of a justification defense, thereby casting significant doubt on the defendant's guilt (see Penal Law § 35.15[c]; § 35.20; People v Lopez, 71 NY2d at 666; cf. People v Ponder, 34 AD3d 1314, 1315; People v Wolcott, 27 AD3d 774, 775; People v Rumrill, 258 AD2d 928, 929). Specifically, a justification to the crime of attempted assault in the first degree exists as an individual may use deadly physical force when that individual, in possession of a dwelling, reasonably believes that another is committing or attempting to commit a burglary of such dwelling, and the individual reasonably believes that deadly force is necessary to prevent or terminate the commission or attempted commission of such burglary (see Penal Law § 35.20; cf. People v Adames, 52 AD3d 617, 619). Although the dissent asserts that the defendant's contention regarding her plea allocution is unpreserved for appellate review, this case presents a rare exception to the preservation requirement insofar as the voluntariness of the plea was called into question before the court (see People v Lopez, 71 NY2d at 665-666; People v Ferraro, 49 AD3d 550, 551). Moreover, we respectfully disagree with the dissent's position that the defendant's allocution did not suggest that she justifiably used deadly physical force to terminate the commission of a burglary or an attempted burglary. Here, the Supreme Court should not have accepted the plea "without making further inquiry to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered" (People v Lopez, 71 NY2d at 666). A further inquiry by the Supreme Court would have revealed whether the defendant had a viable justification defense and whether she understood the ramifications thereof.
Accordingly, we reverse the judgment, vacate the plea of guilty, and remit the matter to the Supreme Court, Kings County, for further proceedings on the indictment (cf. People v Ferraro, 49 AD3d at 551; People v Rodriguez, 14 AD3d 719, 720; People v Pangburn, 298 AD2d 989).
In light of our determination, we need not address the defendant's remaining contentions. DICKERSON, LEVENTHAL and LOTT, JJ., concur. FISHER, J.P., dissents and votes to affirm the judgment of conviction, with the following memorandum, in which ANGIOLILLO, J., concurs.
On April 16, 2001, the defendant stabbed the unarmed complainant in the abdomen. At the time, the complainant was nine months pregnant and was in the company of the defendant's former boyfriend, who was the father of two of the defendant's children. The complainant survived, but underwent an emergency cesarian section. The defendant subsequently pleaded guilty to attempted assault in the first degree in connection with the incident. On appeal, she contends, inter alia, that her plea of guilty must be vacated because the Supreme Court failed to make further inquiry during the plea allocution to establish that the stabbing was not justified or accidental. The majority agrees that the court should not have accepted the defendant's plea without a further inquiry, and therefore reverses the judgment and vacates the plea of guilty. Because I conclude that the defendant's contentions are unpreserved and, in any event, without merit, I respectfully dissent.
In connection with the stabbing, the defendant was indicted for attempted assault in the first degree, assault in the second degree, assault in the third degree, and criminal possession of a weapon in the fourth degree. Later, she was charged in a separate indictment with criminal contempt in the first degree involving the same complainant. The two indictments ultimately were consolidated for plea purposes.
During the course of the proceedings, the defendant was represented by a succession of attorneys, some assigned and some retained. Plea negotiations intensified as jury selection commenced, and the defendant's fifth attorney worked to obtain a favorable disposition for her. The attorney ended his efforts and asked to be relieved when the defendant filed disciplinary charges against him, accusing him of being racist. The court then became concerned that the defendant was engaging in dilatory tactics designed to delay the trial, and presented a flight risk. As a result, the court remanded the defendant. Thereafter, represented by her sixth attorney, the defendant agreed to plead guilty to attempted assault in the first degree in exchange for a ...