People v. Mox

• Decision Date: 06 May 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Michael MOX, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1723
922 N.Y.S.2d 686
2011 N.Y. Slip Op. 03759

The PEOPLE of the State of New York, Respondent,
v.
Michael MOX, Defendant–Appellant.

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

May 6, 2011.

[922 N.Y.S.2d 686]

Easton Thompson Kasperek Shiffrin LLP, Rochester (William T. Easton of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of Counsel), for Respondent.PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.

[922 N.Y.S.2d 687]

MEMORANDUM:

[84 A.D.3d 1724] Defendant was indicted for the crime of murder in the second degree (Penal Law § 125.25[1] ), and he now appeals from a judgment convicting him upon his plea of guilty of the lesser included offense of manslaughter in the first degree (§ 125.20[2] ). “Although the contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction on the ground[ ] now raised” ( People v. VanDeViver, 56 A.D.3d 1118, 1118, 867 N.Y.S.2d 586, lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450, 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099; see People v. McKeon, 78 A.D.3d 1617, 1618, 910 N.Y.S.2d 623; People v. Johnson, 60 A.D.3d 1496, 876 N.Y.S.2d 282, lv. denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088). We agree with defendant, however, that this is one of those rare cases in which preservation is not required because “the defendant's recitation of the facts underlying the crime pleaded to clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ed] into question the voluntariness of the plea” ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). County Court therefore had a “duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary” ( id.), and we conclude that the court failed to fulfill that duty. “[A]t a minimum the record of the ... plea proceedings must reflect ... that defendant's responses to the court's subsequent questions removed the doubt about defendant's guilt” ( People v. Ocasio, 265 A.D.2d 675, 678, 697 N.Y.S.2d 368). Here, defendant's plea allocution did not remove such doubt with respect to the intent element of manslaughter in the first degree (§ 125.20[2]; see People v. McCollum, 23 A.D.3d 199, 803 N.Y.S.2d 80). Indeed, defendant's plea allocution suggested that his underlying schizoaffective disorder, for which he was unmedicated, caused him to be in a “psychotic state” at the time of the crime. Thus, defendant's plea allocution in fact negated the element of intent, and the court should not have “accept[ed] the plea without making further...