| People v Boggs |
| 2007 NY Slip Op 10267 [46 AD3d 1402] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelBoggs, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Joan S. Kohout, A.J.), renderedJanuary 24, 2006. The judgment convicted defendant, upon his plea of guilty, of recklessendangerment in the first degree, endangering the welfare of a child, and criminal possession of aweapon in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law, the plea is vacated and the matter is remitted to LivingstonCounty Court for further proceedings on the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, reckless endangerment in the first degree (Penal Law § 120.25). Althoughdefendant failed to preserve for our review his challenge to the factual sufficiency of the pleaallocution (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Hamilton, 45 AD3d1396 [2007]; People v Joseph,45 AD3d 1414 [2007]), we conclude that this is one of the rare cases in which preservationis not required because "defendant's recitation of the facts underlying the crime pleaded to clearlycasts significant doubt upon the defendant's guilt" (Lopez, 71 NY2d at 666). The Peoplecorrectly concede that reversal of the judgment is required. During his plea allocution, defendantadmitted only that he "grabbed a couple of knives" and "threatened the trooper and the policeofficer," and that he had a "knife in [his] hand" and was "threatening the police with that." Thefactual allocution thus failed to establish the depraved indifference element of recklessendangerment in the first degree (seegenerally People v Feingold, 7 NY3d 288, 290, 294-295 [2006]), or that defendantcreated a grave risk of death to the officers (cf. People v Torres, 174 AD2d 430 [1991],lv denied 79 NY2d 865 [1992]; see generally People v Wilkens, 97 AD2d 698[1983]). Present—Scudder, P.J., Gorski, Lunn, Fahey and Peradotto, JJ.