People v. Pascale

• Decision Date: 05 December 1978
• Citation: 410 N.Y.S.2d 818,66 A.D.2d 653
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony PASCALE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 818

410 N.Y.S.2d 818

66 A.D.2d 653

The PEOPLE of the State of New York, Respondent, v.Anthony PASCALE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 5, 1978.

C. Sucoff, New York City, for respondent.

L. A. Garcia, New York City, for defendant-appellant.

Before MURPHY, P. J., and FEIN, LANE and SULLIVAN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, rendered September 27, 1977, convicting defendant, on his plea of guilty of attempted murder in the second degree, and sentencing him thereupon to an indeterminate term of four to twelve years, affirmed.

During the plea colloquy defendant was asked to state what he had done.He replied, "On March 29, 1977, I fired three shots at Mr. Falantano in his car."Defendant now claims that his recital of the facts did not spell out an intent to commit murder, and that the Court should have inquired further before accepting his plea.It is axiomatic that there is no uniform mandatory catechism for plea-taking.(People v. Nixon,21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 670, 234 N.E.2d 687, 695.)The nature of the plea bargaining process is such that all the factors which entered into the bargain dictate a unique procedure each time.Among the circumstances which might alert a court to the fact that the defendant's plea is inappropriate would be "(e)vidence of a dispute on the facts"(People v. Francis, 38 N.Y.2d 150, 153, 379 N.Y.S.2d 21, 24, 341 N.E.2d 540, 542), where the defendant's factual recital negated an essential element of the crime to which he pleaded.Here, defendant has not negated any element of the crime.Indeed, from his own admission that he fired three shots at the victim, one could readily infer an intent to commit murder.In a similar case, involving a plea also, where it was claimed that the defendant's admissions did not show an intent to inflict serious physical injury, this Court noted "To convict it is not necessary that there should be an explicit admission of such intent as distinct from a finding.Here the acts themselves bespeak the intent."(People v. Castro, 44 A.D.2d 808, 356 N.Y.S.2d 49, affd.37 N.Y.2d 818, 376 N.Y.S.2d 922, 339 N.E.2d 620.)Likewise, in this case, defendant's acts bespeak the intent.Where the record shows that the defendant" . . . admitted committing the acts alleged and his intent"(to commit the crime to which he pleaded)"is 'readily inferrable' from his statements regarding the circumstance of the crime"(People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347), the court is under no duty to make any further inquiry.It is quite clear that the defendant knew what he was doing when he pleaded guilty, and it is quite reasonable to infer that he intended to kill Mr. Falantano when, aiming the gun at his intended victim, he pulled the trigger three times.

All concur except MURPHY, P. J., who concurs in the result only, and FEIN, J., who dissents in the following memorandum:

FEIN, Justice (dissenting).

Defendant appeals from a judgment convicting him on a plea of guilty to an attempted murder in the second degree and sentencing him to an indeterminate term of four to twelve years.The majority, in affirming the conviction, overlooks the insufficiency of the plea allocution and the failure of the court in accepting defendant's plea to inquire of defendant in sufficient manner to establish the requisite criminal intent to kill, clearly an essential element to the crime.

AppellantAnthony Pascale and his brother as co-defendant had been charged with acting in concert in attempting to cause the death of one Richard Falantano.Appellant was indicted for attempted murder in the second degree by firing at Falantano with a loaded .38 caliber revolver on March 29, 1977.At the plea hearing defendant withdrew his plea of not guilty and pleaded guilty to the crime of attempted murder in the second degree, a class B felony under the first count of the indictment to cover the entire indictment.The court elicited from defendant the fact that he was pleading guilty voluntarily and of his own free will and that defendant was aware that by pleading guilty, he was waiving his right to a trial by jury and to confront his accusers.Defendant expressed an understanding that by pleading guilty he waived his privilege against self-incrimination and that his plea had the same legal effect as a conviction after trial.

The court instructed defense counsel as to the need for defendant to tell the court exactly what he did in order to sustain the plea, subsequent to which the following exchange is recorded in the minutes:

"(DEFENSE COUNSEL): Anthony will you tell the Court what you did on March 29, 1977?

"DEFENDANTA. PASCALE: On March 29, 1977, I fired three shots at Mr. Falantano in his car.

"THE COURT: Plea is acceptable.

"(ASSISTANT DISTRICT ATTORNEY): Plea is acceptable to the People, Your Honor."

The plea minutes do not record any further inquiry by the Court as to the events of March 29,...