People v. Hladky

• Decision Date: 20 February 1990
• Citation: 158 A.D.2d 616,551 N.Y.S.2d 587
• Parties: The PEOPLE, etc., Respondent, v. Joseph HLADKY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 587

551 N.Y.S.2d 587

158 A.D.2d 616

The PEOPLE, etc., Respondent, v.Joseph HLADKY, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 20, 1990.

Schwed & Zucker, Kew Gardens (David Zucker, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Linda LaGreca, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, EIBER and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County(Sherman, J.), rendered October 13, 1983, convicting him of burglary in the first degree, criminal possession of a weapon in the fourth degree, and menacing under IndictmentNo. 376/83, upon his plea of guilty, and imposing sentence, and (2) a judgment of the same court(Agresta, J.), rendered April 26, 1984, convicting him of murder in the second degree under IndictmentNo. 3232/83, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment rendered October 13, 1983(IndictmentNo. 376/83) is affirmed; and it is further,

ORDERED that the judgment rendered April 26, 1984(IndictmentNo. 3232/83), is reversed, as a matter of discretion in the interest of justice, the plea is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on that indictment.

In the early morning hours of September 11, 1983, the then 15-year-old defendant stabbed 60-year-old Herbert Smith in the neck, causing his death.The stabbing occurred during the course of an argument in Smith's apartment between Smith and the defendant, who had been "friends" for some four years.As a result of the incident, the defendant was indicted for murder in the second degree and criminal possession of a weapon in the fourth degree.

The defendant subsequently offered to withdraw his previously entered plea of not guilty and to plead guilty to both counts of the indictment ¹, in consideration of the court's promise to impose a sentence of six years' to life imprisonment to run concurrently with a previously imposed sentence of three and one-third to ten years' imprisonment for burglary in the first degree under an earlier indictment (IndictmentNo. 376/83).During the allocution that followed, the defendant explained that he and Smith had had an argument over some money that Smith claimed the defendant owed him, that Smith had approached him with an umbrella in a threatening manner, and that he thereupon picked up a knife from Smith's kitchen table and stabbed him with it.In response to the court's inquiry, the defendant stated that he had not intended to kill Smith.The defendant did, however, admit to an intent to stab Smith in the neck "[b]ecause he was coming at me with an umbrella".In spite of the fact that the court stated that it did not "believe there was ever any intent to cause the death of the deceased", it nevertheless accepted the defendant's plea of guilty to intentional murder.The defendant was thereafter sentenced to six years to life imprisonment for murder in the second degree which, for a juvenile offender like the defendant, carried a minimum permissible term of imprisonment of five years to life and a maximum term of nine years to life (Penal Law § 70.05[2][a], [3][a]).The sentence was, as promised, made to run concurrently with the previously imposed sentence for burglary in the first degree.On appeal, the defendant contends that, in spite of his not having moved to withdraw his guilty plea or to vacate the judgment of conviction, this court may, and should, find that the court erred in accepting his plea of guilty to murder in the second degree given the insufficiency of the factual allocution.We agree.

In People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5, the Court of Appeals recently reiterated the general rule that the defendant must either move to withdraw his plea of guilty or move to vacate the judgment of conviction in order to preserve a challenge to the factual sufficiency of a plea allocution for appellate review.The court did note, however, that there may be a case, albeit rare, "where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea"(People v. Lopez, supra, at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).In such a case, "the trial court has a duty to inquire further to ensure that defendant's guilty plea is knowing and voluntary (see, People v. Francis, 38 N.Y.2d 150, 153, 379 N.Y.S.2d 21, 341 N.E.2d 540;People v. Beasley, 25 N.Y.2d 483, 487-488, 307 N.Y.S.2d 39, 255 N.E.2d 239;People v. Serrano, 15 N.Y.2d 304, 309, 258 N.Y.S.2d 386, 206 N.E.2d 330;see generally, People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170)"(People v. Lopez, supra, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).Where the court fails in its responsibility, the sufficiency of the plea allocution may be challenged on direct appeal, notwithstanding the failure of the...