| People v Harris |
| 2015 NY Slip Op 09772 [134 AD3d 1587] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Harris, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.),rendered February 27, 2014. The judgment convicted defendant, upon his plea of guilty,of attempted criminal possession of a weapon in the third degree and attemptedpromoting prison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating that part of the plea of guilty to attempted promoting prisoncontraband in the first degree and as modified the judgment is affirmed and the matter isremitted to Livingston County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon hisplea of guilty of attempted criminal possession of a weapon in the third degree (PenalLaw §§ 110.00, 265.02 [1]), and attempted promoting prisoncontraband in the first degree (§§ 110.00, 205.25 [2]). Defendant wascharged in an eight-count indictment with a series of charges, and he pleaded guilty tothose two crimes as lesser included offenses of the crimes charged in the third and eighthcounts of the indictment, respectively.
Defendant failed to preserve for our review his contention that his guilty plea was notentered knowingly, voluntarily and intelligently (see People v Darling, 125 AD3d 1279, 1279 [2015], lvdenied 25 NY3d 1071 [2015]), and we conclude that, to the extent he pleaded guiltyto attempted criminal possession of a weapon, that part of his plea does not fall withinthe narrow exception to the preservation requirement such that County Court had a dutyto inquire further into the voluntariness of the plea with respect to that crime (seePeople v Lopez, 71 NY2d 662, 666 [1988]; Darling, 125 AD3d at 1279). Weagree with defendant, however, that the plea of guilty falls within that exception to theextent defendant pleaded guilty to attempted promoting prison contraband. Although "nofactual colloquy was required inasmuch as defendant pleaded guilty to a lesser includedoffense" (People v Thelbert,17 AD3d 1049, 1049 [2005]), here, defendant expressly stated during the colloquythat he did not knowingly possess contraband, did not attempt to introduce anycontraband into the jail, and did not intend to do so. This negated an element of the crimeof attempted promoting prison contraband in the first degree, which requires, inter alia,that he "knowingly and unlawfully makes, obtains or possesses any dangerouscontraband" (Penal Law § 205.25 [2]). Thus, defendant's denials created"that rare case . . . where the defendant's recitation of the facts underlyingthe crime pleaded to clearly casts significant doubt upon the defendant's guilt orotherwise calls into question the voluntariness of the plea[.] [Consequently,] the trialcourt [had] a duty to inquire further to ensure that defendant's guilty plea [was] knowingand voluntary" (Lopez, 71 NY2d at 666). The court having failed to do so, wevacate that part of the plea of guilty to attempted promoting prison contraband and remitthe matter to County Court for further proceedings on count eight of the indictment.
We note, however, that the People have been deprived of the benefit of their bargain.Thus, upon remittal, "the court should entertain a motion by the People, should thePeople be so disposed, to vacate the plea . . . in its entirety" (People vIrwin, 166 AD2d 924, 925 [1990]; see People v [*2]Speed, 13AD3d 1083, 1084 [2004], lv denied 5 NY3d 795 [2005]; see generallyPeople v Farrar, 52 NY2d 302, 307-308 [1981]). Present—Scudder, P.J.,Smith, Centra, Peradotto and Carni, JJ.