| People v Carter |
| 2009 NY Slip Op 03958 [62 AD3d 1154] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark T.Carter, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Stein, J. Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.),rendered May 15, 2006, convicting defendant upon his plea of guilty of the crime of assault inthe second degree, and (2) by permission, from an amended order of said court, enteredDecember 12, 2007, which denied defendant's motion pursuant to CPL 440.10 and 440.20 tovacate the judgment and set aside the sentence, without a hearing.
In satisfaction of a three-count indictment, defendant pleaded guilty to one count of assaultin the second degree and waived his right to appeal. During the plea allocution, County Courtinquired if defendant had discussed a possible intoxication defense with counsel and defendantindicated that he had. County Court accepted defendant's guilty plea. Upon defendant'ssubsequent admission, County Court ultimately found that he had violated the terms of the pleaagreement and imposed an enhanced 5½-year prison term with postrelease supervision.Defendant thereafter unsuccessfully moved to vacate the judgment of conviction and to set asidehis sentence. Defendant appeals from both the judgment of conviction and the amended orderdenying his CPL article 440 motion.
We affirm. Defendant argues that his plea was not knowingly, intelligently and voluntarilyentered, claiming that County Court did not adequately explore his potential [*2]intoxication defense. Despite defendant's guilty plea and appealwaiver, such a claim remains reviewable (see People v Maldonado, 254 AD2d 574[1998]; People v Osgood, 254 AD2d 571, 572-573 [1998]). Nonetheless, County Courtsatisfied its duty of further inquiry by advising defendant that a potential intoxication defenseexisted and assuring that defendant had discussed the issue with counsel and that he was satisfiedwith counsel's representation (seePeople v Sterling, 57 AD3d 1110, 1112 [2008]; People v Munck, 278 AD2d662, 663 [2000]; People v Moore, 270 AD2d 715, 716 [2000], lv denied 95NY2d 800 [2000]; People v Williamson, 165 AD2d 686 [1990]). Accordingly, we aresatisfied that defendant's guilty plea was knowing, intelligent and voluntary (see People vMoore, 270 AD2d at 716).
We have examined defendant's remaining contentions and find them to be without merit.
Rose, J.P., Kavanagh and McCarthy, JJ., concur.
Kane, J. (dissenting). Because County Court failed to conduct any further inquiry whendefendant indicated a potential intoxication defense, his waiver of that defense was not knowingand his plea was therefore not knowing and voluntary. During the plea colloquy, in response tothe court's question whether defendant had discussed any possible defenses with his attorney,including intoxication, defendant replied in the affirmative but also stated, "I was drinking."Defendant's statement raised the possibility of an intoxication defense, obligating the court toinquire whether defendant was aware of the defense and be sure that he was knowingly andintelligently waiving it (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Sterling, 57 AD3d 1110,1112 [2008]). As the court did not conduct any further inquiry after defendant alluded to thispotential defense—which could negate the intent element of the crime—I cannotconclude that his waiver of this defense and, thus, his plea were knowing, intelligent andvoluntary (see People v Osgood, 254 AD2d 571, 572 [1998]; People v Braman,136 AD2d 382, 384-385 [1988], lv denied 72 NY2d 911 [1988]). Therefore, hisjudgment of conviction should be reversed and his plea vacated.
Ordered that the judgment and amended order are affirmed.