| People v Medina-Feliz |
| 2017 NY Slip Op 05053 [151 AD3d 603] |
| June 20, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ramon Medina-Feliz, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Sara Maeder of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered November 14,2014, convicting defendant, upon his plea of guilty, of criminal possession of a controlledsubstance in the second degree and attempted criminal possession of a weapon in the seconddegree, and sentencing him to concurrent terms of three years, unanimously reversed, on the law,the pleas as to both counts vacated, and the matter remanded for further proceedings.
This is a "rare case" where the preservation requirement for challenges to guilty pleas doesnot apply because "defendant's factual recitation negate[d] an essential element of the crimepleaded to" and the court "accept[ed] the plea without making further inquiry to ensure thatdefendant underst[ood] the nature of the charge and that the plea [was] intelligently entered"(People v Lopez, 71 NY2d 662, 666 [1988]). The crime of attempted possession of aweapon in the second degree requires that a defendant intend to use the weapon unlawfullyagainst another. However, during the plea colloquy, defendant explicitly, repeatedly andconsistently denied any intent to use the weapon against anyone, lawfully or otherwise, at thetime the police recovered it or at any other time. The court asked followup questions, but theywere ineffectual because defendant's responses only reconfirmed that he expressly denied havingthe requisite intent. Although an express admission of unlawful intent may not have beennecessary in the first place, particularly because such intent is presumed (see Penal Law§ 265.15 [4]), defendant expressly negated that intent.
[*2] Because the promise of concurrent sentences can no longerbe fulfilled, defendant is also entitled to vacatur of his plea to possession of a controlledsubstance (see People v Rowland, 8NY3d 342 [2007]; People vPichardo, 1 NY3d 126 [2003]). Concur—Friedman, J.P., Renwick,Manzanet-Daniels, Kapnick and Gesmer, JJ.