| People v Richardson |
| 2010 NY Slip Op 03611 [72 AD3d 1578] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Rajsheem L. Richardson, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedFebruary 29, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedassault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice and on the law, the plea is vacated, and the matter isremitted to Jefferson County Court for further proceedings on the indictment.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]), defendantcontends that County Court erred in refusing to suppress a photo array identification based onthe alleged intoxication of the identifying witness. We reject that contention. Although thesobriety of the identifying witness may be relevant with respect to the issue of the reliability ofthe identification, it has no bearing on the issue before the court in determining whether tosuppress the identification, i.e., "whether the identification[ ] resulted from impermissiblysuggestive police conduct" (People v Barton, 164 AD2d 917, 918 [1990]). Additionally,because the photo array was not unduly suggestive, it is of no moment that "the police compiledthe photo array based upon their own suspicion of the perpetrator rather than a description givenby the . . . victim" (Peoplev Scott, 60 AD3d 1483, 1484 [2009], lv denied 12 NY3d 859 [2009]).
Defendant further contends that there was insufficient evidence of guilt in the record andthus that the court erred in accepting his Alford plea. Although defendant failed topreserve that contention for our review, we exercise our power to address it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]; People v Oberdorf, 5 AD3d 1000,1000-1001 [2004]). "In New York, such a plea is allowed only when, as in Alford itself,it is the product of a voluntary and rational choice, and the record before the court containsstrong evidence of actual guilt" (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]).Here, although the prosecutor stated during the plea colloquy that four eyewitnesses wouldtestify at trial that they saw defendant stab the victim, the record does not support that statement.To the contrary, the three police statements in the record are equivocal and, indeed, are moreexculpatory than inculpatory in nature. Moreover, the one eyewitness who initially provided thepolice with a [*2]positive identification of defendant as theattacker made another statement to the police the following day suggesting that she may haveidentified the wrong person. The record is devoid of any support for defendant's guilt other thanthe prosecutor's unsubstantiated statement during the plea colloquy. Thus, although defendantmade a knowing and voluntary choice to enter an Alford plea, we conclude that the courterred in accepting the plea because the record does not contain the requisite "strong evidence ofactual guilt" (Silmon, 95 NY2d at 475; see Oberdorf, 5 AD3d at 1001; seealso People v Alexander, 97 NY2d 482, 486 n 3 [2002]). We therefore reverse the judgment,vacate defendant's plea of guilty, and remit the matter to County Court for further proceedings onthe indictment. Present—Scudder, P.J., Martoche, Lindley, Green and Gorski, JJ.