| People v Grason |
| 2013 NY Slip Op 04827 [107 AD3d 1015] |
| June 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Oliver Grason, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Deborah E. Wassel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hirsch, J.), rendered July 12, 2012, convicting him of sexual abuse in the first degreeand assault in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the defendant's plea of guilty isvacated, and the matter is remitted to Supreme Court, Queens County, for furtherproceedings on the indictment.
In order to be valid, a plea of guilty must be entered voluntarily, knowingly, andintelligently (see People vMox, 20 NY3d 936, 938 [2012]; People v Hill, 9 NY3d 189, 191 [2007], cert denied553 US 1048 [2008]; People vRobinson, 71 AD3d 1169, 1170 [2010]). " '[W]here the defendant's recitation ofthe facts underlying the crime pleaded to clearly casts significant doubt upon thedefendant's guilt or otherwise calls into question the voluntariness of the plea,. . . the trial court has a duty to inquire further to ensure [the] guilty plea isknowing and voluntary' " (People v Mox, 20 NY3d at 938, quoting People vLopez, 71 NY2d 662, 666 [1988]; see People v Robinson, 71 AD3d at1170).
Here, in light of the defendant's known history of mental illness, and the findingwithin six days after commission of the instant sex offense that the defendant wassuffering from psychotic symptoms attributable to bipolar disorder, for which he requiredhospitalization, certain statements made during the defendant's pleaallocution—specifically, statements regarding the complainant's impression that, atthe time of incident, the defendant was "very very much mentallyunwell"—"signaled that [the defendant] may have been suffering from a mentaldisease or defect" when the offense was committed, thereby triggering the SupremeCourt's duty to inquire (People v Mox, 20 NY3d at 939; see People vRobinson, 71 AD3d at 1169-1170; People v Bryant, 66 AD2d 786 [1978];see generally People v Francis, 38 NY2d 150, 154 [1975]). The trial court'sfailure to conduct any inquiry as to a potential affirmative defense to the charges basedupon mental disease or defect (see Penal Law 40.15), requires vacatur of thedefendant's plea of guilty (see People v Mox, 20 NY3d at 939; People vRobinson, 71 AD3d at 1169-1170; People v Bryant, 66 AD2d at 786). Whilethe People are correct that the defendant's argument is unpreserved for appellate review,preservation is not required where, as here, under the totality of the circumstances, thedefendant's guilt and the [*2]voluntariness of the pleawere called into question before the court (see People v Mox, 20 NY3d at 938;People v Lopez, 71 NY2d at 666; People v Robinson, 71 AD3d at1169-1170).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination.
Accordingly, the defendant's plea of guilty must be vacated, and the matter remittedto the Supreme Court, Queens County, for further proceedings on the indictment. Skelos,J.P., Angiolillo, Dickerson and Roman, JJ., concur.