People v. Mox

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered September 18, 2008. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first degree. It is hereby ordered that the judgment so appealed from is reversed on the law, the plea is vacated and the matter is remitted to Monroe County Court for further proceedings on the indictment. [1724] Memorandum: Defendant was indicted for the crime of murder in the second degree (Penal Law § 125.25 [1]), and he now appeals from a judgment convicting him upon his plea of guilty of the lesser included offense of manslaughter in the first degree (§ 125.20 [2]). “Although the contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction on the ground[ ] now raised” (People v VanDeViver, 56 AD3d 1118, 1118 [2008], lv denied 11 NY3d 931 [2009], reconsideration denied 12 NY3d 788 [2009]; see People v McKeon, 78 AD3d 1617, 1618 [2010]; People v Johnson, 60 AD3d 1496 [2009], lv denied 12 NY3d 926 [2009]). We agree with defendant, however, that this is one of those rare cases in which preservation is not required because “the defendant’s recitation of the facts underlying the crime pleaded to clearly cast[ ] significant doubt upon the defendant’s guilt or otherwise call[ed] into question the voluntariness of the plea” (People v Lopez, 71 NY2d 662, 666 [1988]). County Court therefore had a “duty to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary” (id.), and we conclude that the court failed to fulfill that duty. “[A]t a minimum the record of the . . . plea proceedings must reflect . . . that defendant’s responses to the court’s subsequent questions removed the doubt about defendant’s guilt” (People v Ocasio, 265 AD2d 675, 678 [1999]). Here, defendant’s plea allocution did not remove such doubt with respect to the intent element of manslaughter in the first degree (§ 125.20 [2]; see People v McCollum, 23 AD3d 199 [2005]). Indeed, defendant’s plea allocution suggested that his underlying schizoaffective disorder, for which he was unmedicated, caused him to be in a “psychotic state” at the time of the crime. Thus, defendant’s plea allocution in fact negated the element of intent, and the court should not have “accept[ed] the plea without making further inquiry to ensure that defendant [understood] the nature of the charge and that the plea [was] intelligently entered” (Lopez, 71 NY2d at 666). Based on our decision, we see no need to address defendant’s remaining contentions. All concur except Smith, J., who dissents and votes to affirm in the following memorandum