| People v Lang |
| 2015 NY Slip Op 02809 [127 AD3d 1253] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid R. Lang, Appellant. |
Tendy Law Office, LLC, New York City (Sheila Tendy of counsel) and Dechert,LLP, New York City (James M. McGuire of counsel), for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. ofcounsel), for respondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Essex County(Meyer, J.), rendered August 8, 2013, convicting defendant upon his plea of guilty of thecrime of manslaughter in the first degree, and (2) by permission, from an order of saidcourt, entered March 6, 2014, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, without a hearing.
Defendant was indicted and charged with murder in the second degree and criminalpossession of a weapon in the fourth degree following a June 19, 2012 incident at a farmin the Town of Crown Point, Essex County wherein defendant, then 70 years old, fatallyshot his brother in the head with a rifle. Following the incident, defendant called 911,reported the shooting and openly admitted to the 911 dispatcher that he was theperpetrator. When the dispatcher inquired as to whether defendant had been drinking,defendant replied, "Of course I've been drinking. . . . I drink every Goddamn day!" Defendant was taken into custody by state troopers responding to the 911call and, later that same day, was arraigned in Crown Point Town Court, at which timethe Town Judge indicated that he would "re-arraign" defendant the following day due todefendant's apparent level of intoxication.
Following indictment by an Essex County grand jury, the matter was scheduled for a[*2]trial to commence on July 8, 2013. In May 2013,defendant and counsel were apprised of the possibility that defendant's trial might bemoved up to June 10, 2013 due to the adjournment of another trial. In response, defensecounsel advised County Court of his intention to seek an adjournment based upon,among other things, the unavailability of an expert witness. When the parties appearedbefore County Court on June 5, 2013 for a conference, County Court indicated that itindeed intended to move up defendant's trial to the following week. Defense counselobjected and requested an adjournment, again citing the unavailability—due tothis new trial date—of an expert witness relative to defendant's intoxicationdefense. County Court thereafter engaged in an extended discussion with defensecounsel with respect to the asserted intoxication defense—essentially taking theposition that, unless counsel could persuade the court that defendant had a viable defensein this regard, no adjournment was warranted. In so doing, County Court compelleddefense counsel to lay bare his proof in this regard and thereafter expressed seriousmisgivings as to the merits and/or viability of the subject defense.
Following a brief off-the-record discussion, the conference resumed, at which timeCounty Court then inquired as to whether the People had extended a plea offer. Adiscussion as to the possible sentencing parameters ensued and, following another breakin the proceedings, defendant returned to the courtroom and pleaded guilty tomanslaughter in the first degree in full satisfaction of the indictment and waived his rightto appeal. During the course of the plea colloquy, County Court recited the elements ofmanslaughter in the first degree and asked defendant whether it was true that, with intentto cause serious physical injury, he caused the death of his brother, to which defendantresponded, "To the best of my recollection it is, sir." County Court thereafter sentenceddefendant to 15 years in prison followed by five years of postrelease supervision.Defendant's subsequent CPL article 440 motion to vacate the judgment of conviction wasdenied, and he now appeals from the judgment of conviction and, by permission, fromthe order denying his motion to vacate.
Preliminarily, the claims raised by defendant in the context of his CPL article 440motion—namely, that his plea was coerced and/or otherwiseinvoluntary—are reviewable upon defendant's direct appeal from the judgment ofconviction and, hence, are not the proper subject of such a motion (see People v Hillriegel, 78AD3d 1381, 1382 [2010]; People v Lagas, 49 AD3d 1025, 1026 [2008], lvdenied 10 NY3d 866 [2008]). Turning to the merits, defendant's challenge to thevoluntariness of his plea survives his uncontested waiver of the right to appeal but isunpreserved for our review in the absence of a motion to withdraw his plea (see People v Jackson, 119AD3d 1288, 1288 [2014]). That said, we nonetheless are persuaded that the narrowexception to the preservation requirement was triggered here, as defendant's qualifiedresponse—"[t]o the best of my recollection"—to County Court's keyquestion during the course of the plea allocution cast doubt upon his guilt and/orotherwise called into question the voluntariness of his plea, thereby obligating CountyCourt to undertake further inquiry prior to accepting defendant's plea (compare People v Duggins,114 AD3d 1001, 1002 [2014], lv denied 23 NY3d 962 [2014]; People v Morgan, 84 AD3d1594, 1594 [2011], lv denied 17 NY3d 819 [2011]; People v Beach,306 AD2d 753, 754 [2003])—particularly in view of the transcripts of the 911call, wherein defendant clearly indicated that he had been drinking on the day of theshooting, and defendant's Town Court arraignment, wherein the Town Judge expressedconcerns regarding defendant's ability to understand the charges against him due to hisapparent level of intoxication. We also find merit to defendant's claim that his plea wascoerced. As noted previously, defendant entered his plea of guilty in response to theprospect of proceeding to trial within a matter of days and without an expert witness, andsuch plea was entered on the heels of County Court's questionable, pretrial analysis as tothe viability of defendant's asserted intoxication [*3]defense.[FN*] Under these circumstances, we areunable to conclude that defendant's guilty plea was knowing, intelligent and voluntary.Accordingly, the judgment of conviction is reversed and defendant's plea is vacated.
Lahtinen, J.P., McCarthy and Clark, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated and matter remitted to the County Court of EssexCounty for further proceedings not inconsistent with this Court's decision. Ordered thatthe order is affirmed.
Footnote *:County Court admittedlydid not deny defendant's request for an adjournment, but the court nonetheless madeclear that it would grant such a request only if defendant could demonstrate that he had aviable intoxication defense. Absent a viable defense, County Court reasoned, there wasno need for an expert witness and, hence, no need for an adjournment.