People v. Bouges

• Decision Date: 03 April 1987
• Docket Number: No. 1,1
• Parties: PEOPLE of the State of New York, Respondent, v. Lucas BOUGES, Jr., Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 576

514 N.Y.S.2d 576

129 A.D.2d 967

PEOPLE of the State of New York, Respondent, v. Lucas BOUGES, Jr., Appellant. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

April 3, 1987.

Gerald T. Barth, Syracuse, for appellant.

Richard Hennessy, by John Cirando, Syracuse, for respondent.

Before CALLAHAN, J.P., and DENMAN, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

Defendant was convicted, upon his guilty pleas, of the crimes of attempted murder, second degree and criminal possession of a weapon, third degree and sentenced in accordance with the sentence arrangement. Defendant argues for the first time on this appeal that his pleas were not voluntarily and intelligently entered. However, by not raising the issue by motion to withdraw or vacate before the court of first instance, defendant has failed to preserve for appellate review his challenge to the validity of his guilty pleas (see, People v. Pellegrino, 91 A.D.2d 942, 458 N.Y.S.2d 556, affd., 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Bell, 47 N.Y.2d 839, 418 N.Y.S.2d 584, 392 N.E.2d 570; People v. Warren, 47 N.Y.2d 740, 417 N.Y.S.2d 251, 390 N.E.2d 1175; People v. Valencia, 120 A.D.2d 629, 502 N.Y.S.2d 92; People v. Marshall, 118 A.D.2d 735, 500 N.Y.S.2d 68, lv. denied, 68 N.Y.2d 670, 505 N.Y.S.2d 1036, 496 N.E.2d 694). Nonetheless, as a matter of discretion in the interests of justice we exercise our authority to review and we conclude that the judgments of conviction must be reversed, and the pleas vacated.

Where, as here, in pleading guilty to the crime of attempted murder, second degree, defendant cast doubt upon his guilt, the court should not have accepted the plea until it made further inquiry to ensure that defendant was aware of what he was doing and that the facts justified the plea (see, People v. Nixon, 21 N.Y.2d 338, 344, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709; People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330; People v. Wedgewood, 106 A.D.2d 674, 676-677, 483 N.Y.S.2d 440). The court failed to make further inquiry upon defendant's protestations of innocence of the crime of attempted murder, second degree, and "a record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections" (People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170). The mere mouthing of the word "guilty"...