| People v White |
| 2010 NY Slip Op 01123 [70 AD3d 1343] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v QuinntariusWhite, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedMarch 10, 2004. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated and the matter is remitted to Monroe County Court for further proceedings onthe indictment.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of murderin the second degree (Penal Law § 125.25 [2] [depraved indifference murder]), defendantcontends that his guilty plea was not knowingly, voluntarily and intelligently entered."[A]lthough defendant failed to preserve that contention for our review, we conclude that hisstatements during the plea colloquy cast significant doubt upon his guilt with respect to [thatcrime], and thus this case falls within the exception to the preservation requirement" (People v Jones, 64 AD3d 1158,1159 [2009], lv denied 13 NY3d 860 [2009], citing People v Lopez, 71 NY2d662, 666 [1988]). Defendant stated during the plea colloquy that he and a codefendant werearmed, respectively, with a rifle and a shotgun, and that they searched for the victim and, uponlocating him, shot him at close range. Defendant also stated that he fired at the victim. Basedupon his description of the two-on-one shooting, "defendant is 'guilty of an intentional shootingor no other' " (People v Gonzalez, 302 AD2d 870, 871-872 [2003], affd 1 NY3d464 [2004], quoting People v Wall, 29 NY2d 863, 864 [1971]; see People v Payne, 3 NY3d 266,270 [2004], rearg denied 3 NY3d 767 [2004]). Thus, the factual allocution failed toestablish that defendant acted recklessly or with depraved indifference (see Gonzalez, 1NY3d at 467-468). We therefore reverse the judgment of conviction, vacate the plea and remitthe matter to County Court for further proceedings on the indictment. Present—Smith,J.P., Centra, Fahey, Green and Pine, JJ.