| People v Hennessey |
| 2013 NY Slip Op 07884 [111 AD3d 1166] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesJ. Hennessey, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Albany County(Herrick, J.), rendered April 25, 2012, convicting defendant upon his plea of guilty of thecrime of aggravated harassment in the second degree as a hate crime (two counts) and,(2) by permission, from an order of said court, entered November 8, 2012, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant was charged in an indictment with 11 counts of aggravated harassment inthe second degree as a hate crime, after he made anonymous telephone calls toAfrican-American residents of his neighborhood and used threatening language,profanity and racial epithets. In satisfaction of the indictment, he pleaded guilty to two ofthe counts and waived his right to appeal. He was sentenced in accordance with the pleaagreement to concurrent terms of 1 to 3 years in prison. Defendant subsequently movedpursuant to CPL 440.10 to vacate the judgment of conviction, and County Court deniedthe motion without a hearing. Defendant appeals from the judgment of conviction and,by permission, from the order denying his CPL 440.10 motion.
Defendant contends that he suffers from a mental illness and was under the influenceof psychotropic medications at the time that he entered his guilty plea and, therefore, theplea was invalid as he was unable to understand or participate in the proceedings due tomental disease or defect (see CPL 440.10 [1] [e]; People v Kaszubinski, 55AD3d 1133, 1134 [2008], lv denied 12 NY3d 855 [2009]). He furtherasserts that County Court should have conducted a hearing upon [*2]his CPL 440.10 motion relative to this issue. As apreliminary matter, defendant's challenge implicates the voluntariness of his guilty plea,and so his waiver of the right to appeal does not preclude him from raising this issue (see People v McFarren, 83AD3d 1209, 1210 [2011], lv denied 17 NY3d 860 [2011]; People v Ashley, 71 AD3d1286, 1287 [2010], affd 16 NY3d 725 [2011]).
There is evidence in the record that defendant suffers from a mental illness and wastaking medications during the course of the proceedings that may have clouded hisjudgment and rendered him incapable of entering a valid guilty plea. The presentenceinvestigation report indicates that the crimes at issue were defendant's first and onlycriminal convictions. He had previously led a productive and law-abiding life, havingbeen employed as a police officer and later as an attorney. He was 58 years old at thetime he committed the crimes, and his acts appear to have been unprovoked and out ofcharacter. The probation officer further noted that there was no comprehensible reasonwhy defendant would commit these crimes, and speculated that defendant might havesome underlying, undiagnosed mental health problem. Prior to sentencing, defensecounsel had defendant evaluated by a clinical psychologist. This expert noted thatdefendant had been previously diagnosed with chronic anxiety syndrome, and observedthat he was taking multiple medications, including Zocor, Xanax, Zoloft and Seroquel.She also noted that he had been hospitalized on the date of a scheduled court appearanceafter taking too many Xanax and perhaps consuming beer. Based upon her review, thepsychologist concluded that defendant's clinical symptoms were "consistent with BipolarI Disorder, Most Recent Episode Manic," which were seemingly present at the time hecommitted the crimes at issue, and that his conduct appeared to be "reflective of theimpulsivity and poor judgment secondary to mental illness." At the time of sentencing,defense counsel advised that, on the date defendant had previously missed the courtappearance, counsel had found him lying naked on the floor of his home surrounded byempty pill bottles; defendant was taken to the psychiatric unit at the local hospital, wherehe remained for five or six days.
Defendant presented further evidence of his mental illness and use of psychotropicmedications upon his CPL 440.10 motion. In his own affidavit, defendant recountedexperiencing extreme anxiety leading to his hospitalization, and stated that themedications he was taking made him feel intoxicated and in a haze during the plea andsentencing proceedings. He also submitted the affidavit of a forensic nurse consultant,who indicated that the side effects of the medications that defendant was taking includeddrowsiness, dizziness, fatigue and abnormal thinking, and noted that Zoloft was notrecommended for individuals with bipolar disorder. The nurse opined that thecombination and quantity of medications that defendant was taking at the time of his pleaand sentencing "most certainly" would have affected his cognitive ability to understandthe proceedings.
Although postjudgment motions may often be determined upon the record andsubmissions, a hearing is required where facts outside the record are material and wouldentitle a defendant to relief (see CPL 440.30 [5]; People v Satterfield, 66NY2d 796, 799 [1985]; Peoplev LaPierre, 108 AD3d 945, 946 [2013]; People v Kittle, 154 AD2d 782,784 [1989], lv denied 75 NY2d 814 [1990]). Here, the proof reveals thatdefendant suffers from a mental illness and was taking psychotropic medications, andfurther development of the record is required to determine the extent to which his mentalcapacity was impaired and whether this rendered him unable to enter a knowing,voluntary and intelligent guilty plea. A hearing on defendant's CPL 440.10 motion is theappropriate vehicle for collecting further evidence on this issue and determining whetherdefendant's guilty plea should be vacated as a result (see generally People v DiDonato, [*3]263 AD2d 677, 678-679 [1999], lvdenied 94 NY2d 798 [1999]). Accordingly, we find that County Court erred indenying defendant's CPL 440.10 motion without a hearing, and conclude that this mattermust be remitted to County Court for this purpose.
Defendant's remaining contentions, including his claim of ineffective assistance ofcounsel based upon the failure to present a psychiatric defense (see People v Oliveras, 21NY3d 339, 347-348 [2013]), either need not be addressed in view of our dispositionor lack merit.
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.Ordered that the order is reversed, on the law, and matter remitted to the County Court ofAlbany County for further proceedings not inconsistent with this Court's decision.