| People v Green |
| 2016 NY Slip Op 05515 [141 AD3d 837] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEric L. Green, Appellant. |
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 15, 2013, convicting defendant upon his plea of guilty of the crimesof attempted murder in the second degree and robbery in the first degree.
In satisfaction of a pending indictment charging him with multiple crimes arisingfrom an incident wherein he stabbed a state trooper in the neck and took the trooper'sradio, defendant pleaded guilty to attempted murder in the second degree and robbery inthe first degree and executed a waiver of his right to appeal. County Court agreed, as partof the plea agreement, to impose an aggregate prison sentence of 30 years to be followedby postrelease supervision of five years. Defendant received the agreed-upon sentence,and he now appeals.
Defendant's challenge to the validity of his appeal waiver is unavailing. CountyCourt explained to defendant that the right to appeal was separate and distinct from thoserights automatically forfeited by the plea, after which defendant stated that he understoodhis right to appeal and wished to waive it (see People v Sanders, 25 NY3d 337, 341 [2015]; People v Forget, 136 AD3d1115, 1116 [2016]; Peoplev Ramos, 135 AD3d 1234, 1235 [2016]). Defendant then reviewed a detailedwritten waiver with defense counsel and executed it in open court and confirmed that heunderstood it (see People vBradshaw, 18 NY3d 257, 265-267 [2011]; People v Clark, 135 AD3d 1239, 1240 [2016], lvdenied 27 NY3d 995 [2016]).
[*2] Defendant also argues that his guilty plea should be vacated as it was not knowingly,intelligently and voluntarily entered and, while that issue survives his appeal waiver, therecord does not reflect that it is preserved for our review via an appropriatepostallocution motion (seePeople v Love, 137 AD3d 1486, 1487 [2016]; People v Blair, 136 AD3d1105, 1106 [2016], lv denied 27 NY3d 1066 [2016]). Upon our review ofthe record, we are nevertheless satisfied that the narrow exception to the preservationrule is applicable, as statements were made during the plea colloquy that "clearly cast[ ]significant doubt upon the defendant's guilt or otherwise call[ed] into question thevoluntariness of the plea" and required further inquiry on the part of County Court(People v Lopez, 71 NY2d 662, 666 [1988]; see People v Tyrell, 22 NY3d 359, 364 [2013]; People v Mox, 20 NY3d936, 938 [2012]).
Defense counsel advised County Court during the plea colloquy that there weresignificant issues regarding defendant's mental state when he attacked the trooper andthat, as a result, a psychiatrist had assessed whether defendant "was unable to form theintent necessary" to commit the charged offenses (People v Mox, 20 NY3d at938; see Penal Law § 40.15; see also Penal Law§§ 125.25 [1]; 160.00, 160.15 [3]). Defense counsel then representedthat defendant had agreed to accept the proffered plea bargain because the psychiatristopined that an insanity defense could properly be raised at trial, but that he would beunable to testify to a reasonable degree of medical certainty that defendant "did notunderstand the nature and consequences of his actions or that his conduct was wrong"(see Penal Law § 40.15). County Court's response to thosestatements was limited to confirming that defendant had heard the representations ofdefense counsel, discussed those issues with him and believed that the plea agreementwas "a fair resolution." The Court of Appeals has made clear, however, that "question[s]to [a] defendant verifying that he [or she] discussed that defense with his [or her]attorney and opted not to assert it" are insufficient under these circumstances (Peoplev Mox, 20 NY3d at 939; seePeople v Dukes, 120 AD3d 1597, 1597-1599 [2014]). Thus, absent a furtherinquiry into defendant's understanding of the affirmative defense and its potentialapplicability by County Court, the plea "should not have been accepted by the court andmust now be vacated" (People vMcMillan, 129 AD3d 1113, 1114 [2015]; see People v Mox, 20 NY3dat 938-939; People v Dukes, 120 AD3d at 1597-1599).
In light of the foregoing, we need not address defendant's remainingcontentions.
McCarthy, J.P., Rose and Aarons, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Albany County for furtherproceedings not inconsistent with this Court's decision.