People v. Foster

• Decision Date: 23 February 1967
• Citation: 19 N.Y.2d 150,225 N.E.2d 200,278 N.Y.S.2d 603
• Parties: , 225 N.E.2d 200 The PEOPLE of the State of New York, Respondent, v. William FOSTER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 603

278 N.Y.S.2d 603

19 N.Y.2d 150, 225 N.E.2d 200

The PEOPLE of the State of New York, Respondent, v. William FOSTER, Appellant.

Court of Appeals of New York.

Feb. 23, 1967.

Frederick J. Ludwig and Simon Klein, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Michael Juviler and H. Richard Uviller, New York City, of counsel), for respondent.

SCILEPPI, Judge.

Defendant was charged with manslaughter in the first degree (Penal Law, Consol.Laws, c. 40, § 1050) for the killing of one Thomas Hicks. Defendant was permitted to withdraw his original plea of not guilty and plead guilty to attempted manslaughter in the second degree.

On this appeal, defendant's principal argument is that he pleaded guilty to a nonexistent crime; therefore, his plea of guilty to such a charge, i.e., attempted manslaughter in the second degree, is a nullity, and that the judgment of conviction has no basis in law and violates due process.

Defendant also argues that his plea of guilty is invalid because the defendant, the attorneys, and the court manifestly misunderstood the nature of the crime pleaded to, and that the court accepted the plea before giving defendant the monition required by section 335--b of the Code of Criminal Procedure.

Sections 1050 and 1052 of the Penal Law provide that the crimes of manslaughter in the first degree and in the second degree respectively are homicides committed 'without a design to effect death'.

Section 2 of the Penal Law defines an attempt to commit crime as 'An act, done with intent to commit a crime, and tending but failing to effect its commission'.

Defendant argues that, since no intent is required in the crime of manslaughter and since an attempt to commit a crime requires an intent to commit the crime, a plea of guilty to attempted manslaughter is logically and legally impossible. The defendant relies upon People v. Brown (21 A.D.2d 738, 249 N.Y.S.2d 922) in support of his position. In Brown the defendant was convicted, Pursuant to a jury verdict, of the crime of attempted manslaughter, having been indicted for attempted murder in the first degree. The Appellate Division modified, holding: 'An attempt to commit a crime consists of (1) the intent to commit the crime; (2) the performance of an act toward the commission and (3) failure to consummate. There must be an intent to commit a specific crime in order to constitute an attempt (People v. Moran, 123 N.Y. 254, 257, 25 N.E. 412, 10 L.R.A. 109, * * *). An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.' (21 A.D.2d 738, 739, 249 N.Y.S.2d 922, 923.) There is no doubt that the above case would be dispositive of this appeal if we were faced with an appeal from a jury verdict.

In our case, however, the charge in the indictment is manslaughter is the first degree and a Plea was taken to attempted manslaughter in the second degree as a lesser included crime. This presents an entirely different situation. The alleged infirmity of the plea to attempted manslaughter in the second degree in this case arises from the definition of what constitutes an 'attempt' under section 2 of the Penal Law. The question on this appeal is whether this definition which includes an 'intent to commit a crime' renders the plea taken by defendant inoperative, illogical or repugnant and, therefore, invalid. We hold that it does not when a defendant knowingly accepts a plea to attempted manslaughter as was done in this case in satisfaction of an indictment charging a crime carrying a heavier penalty. In such case, there is no violation of defendant's right to due process. The defendant declined to risk his chances with a jury. He induced the proceeding of which he now complains. He made no objection or complaint when asked in the presence of his counsel whether he had any legal cause to show why judgment should not be pronounced against him, and judgment was thereafter pronounced. As a result, the range of sentence which the court could impose was cut in...