| People v Mox |
| 2011 NY Slip Op 03759 [84 AD3d 1723] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael Mox,Appellant. |
—[*1]
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedSeptember 18, 2008. The judgment convicted defendant, upon his plea of guilty, of manslaughterin the first degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, the plea isvacated and the matter is remitted to Monroe County Court for further proceedings on theindictment.
Memorandum: Defendant was indicted for the crime of murder in the second degree (PenalLaw § 125.25 [1]), and he now appeals from a judgment convicting him upon his plea ofguilty of the lesser included offense of manslaughter in the first degree (§ 125.20 [2])."Although the contention of defendant that his plea was not knowingly, intelligently andvoluntarily entered survives his valid waiver of the right to appeal, defendant failed to preservethat contention for our review by failing to move to withdraw the plea or to vacate the judgmentof conviction on the ground[ ] now raised" (People v VanDeViver, 56 AD3d 1118, 1118 [2008], lvdenied 11 NY3d 931 [2009], reconsideration denied 12 NY3d 788 [2009]; see People v McKeon, 78 AD3d1617, 1618 [2010]; People vJohnson, 60 AD3d 1496 [2009], lv denied 12 NY3d 926 [2009]). We agree withdefendant, however, that this is one of those rare cases in which preservation is not requiredbecause "the defendant's recitation of the facts underlying the crime pleaded to clearly cast[ ]significant doubt upon the defendant's guilt or otherwise call[ed] into question the voluntarinessof the plea" (People v Lopez, 71 NY2d 662, 666 [1988]). County Court therefore had a"duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary"(id.), and we conclude that the court failed to fulfill that duty. "[A]t a minimum therecord of the . . . plea proceedings must reflect . . . that defendant'sresponses to the court's subsequent questions removed the doubt about defendant's guilt"(People v Ocasio, 265 AD2d 675, 678 [1999]). Here, defendant's plea allocution did notremove such doubt with respect to the intent element of manslaughter in the first degree (§125.20 [2]; see People v McCollum,23 AD3d 199 [2005]). Indeed, defendant's plea allocution suggested that his underlyingschizoaffective disorder, for which he was unmedicated, caused him to be in a "psychotic state"at the time of the crime. Thus, defendant's plea allocution in fact negated the element of intent,and the court should not have "accept[ed] the plea without making further inquiry to ensure thatdefendant [understood] the nature of the charge and that the plea [was] intelligently entered"(Lopez, 71 NY2d at 666).[*2]
Based on our decision, we see no need to addressdefendant's remaining contentions.
All concur except Smith, J., who dissents and votes to affirm in the following memorandum
Smith, J. (dissenting). I respectfully dissent. Even assuming, arguendo, that the majority iscorrect that this is one of those rare cases for which preservation is not required (see People vLopez, 71 NY2d 662, 666 [1988]), I nevertheless conclude that County Court conducted asufficient inquiry to ensure that defendant's plea was entered knowingly and voluntarily, and thatdefendant's statements during the plea colloquy established all of the elements of the crime towhich he pleaded guilty (see id.).
As noted by the majority, defendant pleaded guilty to manslaughter in the first degree as alesser included offense of the crime of murder in the second degree, as charged in the indictment.It is well settled that, in pleading guilty to manslaughter pursuant to Penal Law § 125.20(2), a defendant must admit that he or she intentionally caused the death of the victim but did sounder circumstances demonstrating that he or she was acting under the influence of an extremeemotional disturbance for which there was a reasonable explanation or excuse (see id.;§ 125.25 [1] [a]). Here, the plea colloquy established all of the elements of the crime ofmanslaughter in the first degree under that subdivision, inasmuch as defendant admitted duringthe plea colloquy that he caused the death of the victim, his 80-year-old father, by repeatedlystabbing him and bludgeoning him. Defendant's contention with respect to the allegedinsufficiency of the plea colloquy is that County Court failed to make a sufficient inquiry into thedefense of not guilty by reason of insanity after defendant made statements indicating that he hadstopped taking his medication and was in a psychotic state at the time of the killing. The recordestablishes, however, that after making those statements, both defendant and his attorneyunequivocally waived the defense of not guilty by reason of mental disease or defect. In addition,defendant was evaluated with respect to that defense by a psychiatrist on defendant's behalf, whoopined that defendant suffered from chronic schizoaffective disorder with acute exacerbation,i.e., a mental disease or defect that impaired his reason to the point that he did not know thenature and quality of his actions. He was also evaluated by a psychiatrist on behalf of the People,who essentially agreed with the diagnosis of the defense psychiatrist but opined that defendantdid in fact understand the nature and quality of his acts. After months of discussion betweendefense counsel, the prosecutor and the court, the plea offer to the lesser charge of manslaughterwas made. Thus, the record unequivocally establishes that the defense of not guilty by reason ofinsanity was fully explored by the court and counsel, and that defendant and his attorney waivedthat defense. Inasmuch as "defendant was competent to stand trial, he was likewise competent tomake decisions regarding his defense" (People v Ciborowski, 302 AD2d 620, 622[2003], lv denied 100 NY2d 579 [2003]), and the court therefore properly accepteddefendant's waiver of that defense (see People v Boatwright, 293 AD2d 286 [2002],lv denied 98 NY2d 673 [2002]; People v Saletnik, 285 AD2d 665, 667 [2001];People v Rogers, 163 AD2d 337 [1990], lv denied 76 NY2d 943 [1990]). In myview, no further inquiry was necessary under these circumstances. Present—Smith, J.P.,Peradotto, Carni, Sconiers and Green, JJ.