People v. McKenna, 2013-600 K CR.

• Court: New York Supreme Court — Appellate Term
• Citation: 2016 N.Y. Slip Op. 26118,31 N.Y.S.3d 736,51 Misc.3d 62
• Docket Number: 2013-600 K CR.
• Parties: The PEOPLE of the State of New York, Respondent, v. Kelly McKENNA, Appellant.
• Decision Date: 07 April 2016

51 Misc.3d 62
31 N.Y.S.3d 736
2016 N.Y. Slip Op. 26118

The PEOPLE of the State of New York, Respondent,
v.
Kelly McKENNA, Appellant.

2013-600 K CR.

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

April 7, 2016.

31 N.Y.S.3d 737

Scott Rosenberg, The Legal Aid Society, New York City (Lorraine Maddalo of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn (Daniel Berman, Leonard Joblove and Solomon Neubort of counsel), for respondent.

PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Stephen M. Antignani, J.), rendered January 22, 2013. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree.

51 Misc.3d 63

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with assault in the second degree (Penal Law § 120.05[2] ), strangulation in the second degree (Penal Law § 121.12 ), assault in the third degree (Penal Law § 120.00[1] ), menacing in the second degree (Penal Law § 120.14[1] ), criminal obstruction of breathing or blood circulation (Penal Law § 121.11[A] ), criminal mischief in the fourth degree (Penal Law § 145.00[1] ), endangering the welfare of a child (Penal Law § 260.10[1] ), criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1 ] ), menacing in the third degree (Penal Law § 120.15 ), and harassment in the second degree (Penal Law § 240.26[1] ), based on an incident during which he had physically assaulted his wife. The felony charges were dismissed by the People, and defendant ultimately pleaded guilty to assault in the third degree in satisfaction of the accusatory instrument, admitting that he had, among other things, slapped and punched his wife across her face, thereby causing her physical injury. Prior to pleading guilty, defendant, through his counsel, made a request for his wife's psychiatric records. The court informed defendant that, although it would permit him to subpoena those records, there was no guarantee that he would be permitted to actually view those confidential documents, and that since, at the time, he was incarcerated in lieu of bail, there was a chance that he would remain in jail for a longer period of time awaiting receipt of those records than he would if he accepted the plea bargain, which called for a promised sentence of six-months' incarceration, including credit for the two months he had already been in jail. On appeal, defendant contends that his guilty plea was

51 Misc.3d 64

coerced by the Criminal Court's discussion of the significant delay that obtaining the psychiatric records would entail and the attendant extensive time that he would remain incarcerated if he pursued that issue.

In order to be valid, a guilty plea must be entered voluntarily, knowingly and intelligently (see People v. Mox, 20 N.Y.3d 936, 958 N.Y.S.2d 670, 982 N.E.2d 590 [2012] ; People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152 [2007] ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). A plea is voluntary if it represents a choice freely made by the defendant among legitimate alternatives (see North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ; People v. Hale, 93 N.Y.2d 454, 463, 692 N.Y.S.2d 649, 714 N.E.2d 861 [1999] ), and voluntariness is determined by consideration

31 N.Y.S.3d 738

of all of the relevant...