June 14, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
KELVIN ROBINSON, DEFENDANT-APPELLANT.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), rendered November 3, 2004. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated and the matter is remitted to Niagara County Court for further proceedings on the indictment.
Memorandum: We previously granted defendant's motion for a writ of error coram nobis (People v Robinson, 98 A.D.3d 1324). We therefore review, de novo, defendant's appeal from a judgment convicting him, upon his plea of guilty in 2004, of depraved indifference murder (Penal Law § 125.25 ) in connection with the stabbing death of his wife.
Defendant's contention that his plea was not knowing and voluntary survives his waiver of the right to appeal (see People v Seaburg, 74 N.Y.2d 1, 10). Preservation of the contention is not required inasmuch as defendant correctly contends that his statements during the plea colloquy cast significant doubt upon his guilt (see People v Mox, 84 A.D.3d 1723, 1724, affd 20 N.Y.3d 936). Defendant stated that he struggled with his wife for control of the knife and that he acted recklessly when he stabbed her, and thus his statements suggest that he did not act with the requisite "depraved indifference state of mind" (People v Jones, 64 A.D.3d 1158, 1159, lv denied 13 N.Y.3d 860). Indeed, it is well established that a "one-on-one... knifing... can almost never qualify as depraved indifference murder" (People v Payne, 3 N.Y.3d 266, 272, rearg denied 3 N.Y.3d 767; see People v Suarez, 6 N.Y.3d 202, 211-212). We therefore conclude that County Court erred by accepting the plea without further inquiry to ensure that defendant's plea was knowing and voluntary (see Mox, 84 A.D.3d at 1724). We note that, "[a]lthough defendant entered his guilty plea before the Court of Appeals decided [ People v ] Feingold [(7 N.Y.3d 288, 296)], which definitively stated for the first time that the depraved indifference element of depraved indifference murder is a culpable mental state rather than the circumstances under which the killing is committed..., we nevertheless conclude that Feingold applies herein" inasmuch as defendant's direct appeal in People v Robinson (41 A.D.3d 1314, lv denied 9 N.Y.3d 880) was pending when Feingold was decided (Jones, 64 A.D.3d at 1159). We therefore reverse the judgment of conviction, vacate the plea and remit the matter to County Court for further proceedings on the indictment.