| People v Laflower |
| 2016 NY Slip Op 08899 [145 AD3d 1341] |
| December 29, 2016 |
| Appellate Division, Third Department |
[*1](December 29, 2016)
| The People of the State of New York, Respondent, vRichard E. Laflower, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton, for respondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered June 19, 2014, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the second degree.
In November 2013, defendant was charged in an indictment with robbery in the firstdegree in connection with a holdup at a pharmacy that occurred in 2010. Althoughsurveillance videos and DNA evidence tied defendant to the crime, he claimed that hehad no recollection of the events as he was a chronic user of controlled substances in2010. Notwithstanding his lack of memory, defendant agreed to enter a plea of guilty toattempted robbery in the second degree in satisfaction of the indictment because,although there were minor inconsistencies in the evidence, he believed that the DNAevidence proved that he was the perpetrator. In accordance with the terms of the pleaagreement, defendant was sentenced as a second felony offender to four years in prison,to be followed by five years of postrelease supervision. He now appeals.
Defendant's sole contention is that his guilty plea was not knowing, voluntary andintelligent. Preliminarily, we note that, inasmuch as defendant failed to make anappropriate postallocution motion, this claim is unpreserved for our review (see People v Lunan, 141 AD3d947, 948 [2016]; People vHorton, 140 AD3d 1525, 1525 [2016]). Nevertheless, we find that the narrowexception to the preservation rule is applicable because defendant's statement during theplea colloquy that he had no recollection of committing the crime due to drug use raisesthe unaddressed question of his ability to form the intent to forcibly steal property, anessential element of the crime of attempted robbery (see Penal Law§§ 110.00, 160.10; People v Mateo, 13 [*2]AD3d 987, 988 [2004], lv denied 5 NY3d 883[2005]; see generally People v Serrano, 15 NY2d 304, 308-309 [1965]). Underthese circumstances, defendant's statement "casts significant doubt upon [his] guilt orotherwise calls into question the voluntariness of the plea," such that County Court wasrequired to conduct a further inquiry to ensure that defendant's guilty plea was knowingand voluntary (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Mox, 20 NY3d936, 938 [2012]; People vGreen, 141 AD3d 837, 838 [2016]). Here, County Court did not conduct suchan inquiry or probe into whether defendant understood his right to offer evidence ofintoxication to negate the element of intent prior to accepting his guilty plea (seePenal Law § 15.25; see also People v Mox, 20 NY3d at 938-939; compare People v McCray, 139AD3d 1235, 1236 [2016]; People v DeCenzo, 132 AD3d 1160, 1161 [2015], lvdenied 27 NY3d 996 [2016]). Accordingly, County Court erred in accepting theguilty plea and the judgment must be reversed (see People v Mox, 20 NY3d at939).
McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Broome County forfurther proceedings not inconsistent with this Court's decision.