Calendar Date: February 21, 2018
Mitchell S. Kessler, Cohoes, for appellant, and appellant pro
se.
Stephen K. Cornwell Jr., District Attorney, Binghamton
(Nicole Romano of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker,
JJ.
MEMORANDUM AND ORDER
Clark,
J.
Appeal
from a judgment of the County Court of Broome County (Smith,
J.), rendered January 20, 2015, convicting defendant upon his
plea of guilty of the crime of attempted assault in the
second degree.
Defendant
waived indictment and agreed to be prosecuted by a superior
court information charging him with assault in the second
degree. In satisfaction thereof, he pleaded guilty to
attempted assault in the second degree and was sentenced to
time served. Defendant now appeals.
Defendant
contends that his guilty plea was not knowing, voluntary and
intelligent and that he should have been given an opportunity
to withdraw his guilty plea based upon a statement that he
had made at sentencing that raised the potential defense of
justification. Although the record does not disclose that
defendant made the appropriate postallocution motion required
of him to adequately preserve this claim for our review
(see People v Horton, 140 A.D.3d 1525, 1525 [2016];
People v Morgan, 84 A.D.3d 1594, 1594 [2011], lv
denied 17 N.Y.3d 819');">17 N.Y.3d 819 [2011]), we find that defendant
made statements at sentencing that cast doubt upon his guilt
and the voluntariness of his plea, thus triggering the narrow
exception to the preservation requirement and imposing a duty
upon County Court "to inquire further to ensure that
defendant's guilty plea [was] knowing and voluntary"
(People v Lopez, 71 N.Y.2d 662, 666 [1988]; see
People v Busch-Scardino, 158 A.D.3d 988, 989 [2018];
People v Lang, 127 A.D.3d 1253, 1255 [2015];
People v Morehouse, 109 A.D.3d 1022, 1022 [2013]). A
trial court "'should conduct a hearing [or further
inquiry] when at plea-taking or upon sentencing it
appears the defendant misapprehends the nature of the charges
or the consequences of [the] plea'" (People v
Gresham, 151 A.D.3d 1175, 1177 [2017], quoting
People v Beasley, 25 N.Y.2d 483, 488 [1969]; see
People v McKennion, 27 N.Y.2d 671, 672-673 [1970]). In
addition, statements made by a defendant that negate an
element of the crime to which a plea has been entered, raise
the possibility of a justification defense or otherwise
suggest an involuntary plea "require[s] the trial court
to then conduct a further inquiry or give the defendant an
opportunity to withdraw the plea" (People v
Gresham, 151 A.D.3d at 1178; see People v
Pastor, 28 N.Y.3d 1089, 1090-1091 [2016]; People v
McKennion, 27 N.Y.2d at 672-673; People v
Herrera, 150 A.D.3d 625, 625 [2017], lv denied
29 N.Y.3d 1127');">29 N.Y.3d 1127 [2017]).
At
sentencing, defendant stated, "I was sorry that the
person got hurt. I didn't mean to hurt him. I was just
trying to protect my family inside my home." When
confronted by County Court with the fact that he had
allocuted during the plea colloquy that he intended to hurt
the victim, defendant stated, "I was scared, so I
intend[ed] to hurt him." Without any further inquiry or
discussion, County Court then proceeded to sentence defendant
without providing him with an opportunity to withdraw his
plea, notwithstanding his statements raising the possibility
of a justification defense. Accordingly, given the
circumstances of defendant's plea and sentencing, we
reverse the judgment and vacate his guilty plea (see
People v Gresham, 151 A.D.3d at 1178; People v
Lang, 127 A.D.3d at 1255; compare People v
Pastor, 28 N.Y.3d at 1090-1091; People v
Bailey, 158 A.D.3d 948, 948-949 [2018] [holding that the
trial court was under no obligation to conduct any further
inquiry in response to the defendant's "belated,
postplea assertion" that he was intoxicated at the time
of the crime, which he made known for the first time during
his presentence interview with the Probation Department];
People v Osman, 151 A.D.3d 494, 494-495 [2017]
[opining that the defendant's reference to his
"state of mind" immediately following his guilty
plea did not trigger a duty to inquire into a potential
psychiatric defense], lv denied 30 N.Y.3d 982');">30 N.Y.3d 982
[2017]; People v Herrera, 150 A.D.3d at 625 [finding
that "the sentencing court had no obligation to conduct
a sua sponte inquiry into postplea statements by defendant
that were reflected in the presentence report"]).
[1]
McCarthy, J.P., Lynch, Devine and Pritzker, JJ., concur.
ORDERED
that the judgment is reversed, on the law, and matter
remitted to the County Court of Broome County for further
proceedings not inconsistent with this Court's decision.
---------
Notes:
[1] To the extent that the People rely on our
holding in People v Pearson (110 A.D.3d 1116, 1116
[2013]), that case predates People v Pastor (28
N.Y.3d at 1090-1091) and ...