People v. Hennessey

• Citation: 975 N.Y.S.2d 502,2013 N.Y. Slip Op. 07884,111 A.D.3d 1166
• Parties: The PEOPLE of the State of New York, Respondent, v. James J. HENNESSEY, Appellant.
• Decision Date: 27 November 2013
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1166

975 N.Y.S.2d 502

2013 N.Y. Slip Op. 07884

The PEOPLE of the State of New York, Respondent,

v.James J. HENNESSEY, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 27, 2013.

Greenwald Law Offices, Chester (Gary Greenwald of counsel), for appellant.

P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.), rendered April 25, 2012, convicting defendant upon his plea of guilty of the crime of aggravated harassment in the second degree as a hate crime (two counts) and, (2) by permission, from an order of said court, entered November 8, 2012, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged in an indictment with 11 counts of aggravated harassment in the second degree as a hate crime, after he made anonymous telephone calls to African–American residents of his neighborhood and used threatening language, profanity and racial epithets. In satisfaction of the indictment, he pleaded guilty to two of the counts and waived his right to appeal. He was sentenced in accordance with the plea agreement to concurrent terms of 1 to 3 years in prison. Defendant subsequently moved pursuant to CPL 440.10 to vacate the judgment of conviction, and County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.

Defendant contends that he suffers from a mental illness and was under the influence of psychotropic medications at the time that he entered his guilty plea and, therefore, the plea was invalid as he was unable to understand or participate in the proceedings due to mental disease or defect ( seeCPL 440.10 [1][e]; People v. Kaszubinski, 55 A.D.3d 1133, 1134, 865 N.Y.S.2d 772 [2008], lv. denied12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590 [2009] ). He further asserts that County Court should have conducted a hearing upon his CPL 440.10 motion relative to this issue. As a preliminary matter, defendant's challenge implicates the voluntariness of his guilty plea, and so his waiver of the right to appeal does not preclude him from raising this issue ( see People v. McFarren, 83 A.D.3d 1209, 1210, 921 N.Y.S.2d 391 [2011], lv. denied17 N.Y.3d 860, 932 N.Y.S.2d 26, 956 N.E.2d 807 [2011]; People v. Ashley, 71 A.D.3d 1286, 1287, 896 N.Y.S.2d 520 [2010], affd.16 N.Y.3d 725, 917 N.Y.S.2d 91, 942 N.E.2d 300 [2011] ).

There is evidence in the record that defendant suffers from a mental illness and was taking medications during the course of the proceedings that may have clouded his judgment and rendered him incapable of entering a valid guilty plea. The presentence investigation report indicates that the crimes at issue were defendant's first and only criminal convictions. He had previously led a productive and law-abiding life, having been employed as a police officer and later as an attorney. He was 58 years old at the time he committed the crimes, and his acts appear to have been unprovoked and out of character. The probation officer further noted that there was no comprehensible reason why defendant would commit these crimes, and speculated that defendant might have some underlying, undiagnosed mental health problem. Prior to sentencing, defense counsel had defendant evaluated by a clinical psychologist. This expert noted that defendant had been previously diagnosed with chronic anxiety syndrome, and observed that he was taking multiple medications, including Zocor, Xanax, Zoloft and Seroquel. She also noted that he had been hospitalized on the date of a scheduled court appearance after taking too many Xanax and perhaps consuming beer. Based upon her review, the psychologist concluded that defendant's clinical symptoms were “consistent with Bipolar I Disorder, Most Recent Episode Manic,” which were seemingly present at the time he committed the crimes at issue, and that his conduct appeared to be “reflective of the impulsivity and poor judgment secondary to mental illness.” At the time of sentencing, defense counsel advised that, on the date defendant had previously missed the court appearance, counsel had found him lying naked on the floor of his home surrounded by empty pill bottles; defendant was taken to the psychiatric unit at the local hospital, where he remained for five or six days.

Defendant presented further evidence of his mental illness and use of psychotropic medications upon his CPL 440.10 motion. In his own affidavit, defendant recounted experiencing extreme anxiety...