| People v Chin |
| 2018 NY Slip Op 02363 [160 AD3d 1038] |
| April 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Colin M. Chin, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant, and appellant pro se.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Nicole Romano of counsel), forrespondent.
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 attemptedassault in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with assault in the second degree. In satisfaction thereof, he pleaded guilty toattempted assault in the second degree and was sentenced to time served. Defendant nowappeals.
Defendant contends that his guilty plea was not knowing, voluntary and intelligent and thathe should have been given an opportunity to withdraw his guilty plea based upon a statement thathe had made at sentencing that raised the potential defense of justification. Although the recorddoes not disclose that defendant made the appropriate postallocution motion required of him toadequately preserve this claim for our review (see People v Horton, 140 AD3d 1525, 1525 [2016]; People v Morgan, 84 AD3d 1594,1594 [2011], lv denied 17 NY3d 819 [2011]), we find that defendant made statements atsentencing that cast doubt upon his guilt and the voluntariness of his plea, thus triggering thenarrow exception to the preservation requirement and imposing a duty upon County Court "toinquire further to ensure that defendant's guilty plea [was] knowing and voluntary" (People vLopez, 71 NY2d 662, 666 [1988]; see People v Busch-Scardino, 158 AD3d 988, 989 [2018]; People v Lang, 127 AD3d 1253,1255 [2015]; People v Morehouse, 109 AD3d [*2]1022,1022 [2013]). A trial court " 'should conduct a hearing [or further inquiry] when atplea-taking or upon sentencing it appears the defendant misapprehends the nature of thecharges or the consequences of [the] plea' " (People v Gresham, 151 AD3d 1175, 1177 [2017], quotingPeople v Beasley, 25 NY2d 483, 488 [1969]; see People v McKennion, 27 NY2d671, 672-673 [1970]). In addition, statements made by a defendant that negate an element of thecrime to which a plea has been entered, raise the possibility of a justification defense orotherwise suggest an involuntary plea "require[s] the trial court to then conduct a further inquiryor give the defendant an opportunity to withdraw the plea" (People v Gresham, 151AD3d at 1178; see People v Pastor,28 NY3d 1089, 1090-1091 [2016]; People v McKennion, 27 NY2d at 672-673; People v Herrera, 150 AD3d 625,625 [2017], lv denied 29 NY3d 1127 [2017]).
At sentencing, defendant stated, "I was sorry that the person got hurt. I didn't mean to hurthim. I was just trying to protect my family inside my home." When confronted by County Courtwith 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 ordiscussion, County Court then proceeded to sentence defendant without providing him with anopportunity to withdraw his plea, notwithstanding his statements raising the possibility of ajustification defense. Accordingly, given the circumstances of defendant's plea and sentencing,we reverse the judgment andvacate his guilty pl
ea (see People v Gresham, 151 AD3d at 1178; People v Lang, 127 AD3d at1255; compare People v Pastor, 28 NY3d at 1090-1091; People v Bailey, 158 AD3d 948,948-949 [2018] [holding that the trial court was under no obligation to conduct any furtherinquiry in response to the defendant's "belated, postplea assertion" that he was intoxicated at thetime of the crime, which he made known for the first time during his presentence interview withthe Probation Department]; People vOsman, 151 AD3d 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 apotential psychiatric defense], lv denied 30 NY3d 982 [2017]; People v Herrera,150 AD3d at 625 [finding that "the sentencing court had no obligation to conduct a sua sponteinquiry into postplea statements by defendant that were reflected in the presentencereport"]).[FN*]
McCarthy, J.P., Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Broome County for furtherproceedings not inconsistent with this Court's decision.
Footnote *:To the extent that the People relyon our holding in People v Pearson(110 AD3d 1116, 1116 [2013]), that case predates People v Pastor (28 NY3d at1090-1091) and should no longer be followed.