People v. Smallwood
| Decision Date | 22 June 1990 |
| Parties | PEOPLE of the State of New York, Respondent, v. Jesse SMALLWOOD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael Robinson, Naples, for appellant.
R. Michael Tantillo by Brian Dennis, Canandaigua, for respondent.
Before DOERR, J.P., and DENMAN, BALIO, LAWTON and LOWERY, JJ.
There is no merit to defendant's contention that, because he denied an intent to inflict serious physical injury during his plea allocution, the court erred by accepting his guilty plea to the charge of assault in the first degree. An intent to inflict serious physical injury was readily inferable from defendant's admissions concerning the beating of his wife (see, People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347, rearg. denied 42 N.Y.2d 1015, 398 N.Y.S.2d 1033, 368 N.E.2d 289; People v. Lopez, 127 A.D.2d 234, 514 N.Y.S.2d 353, affd 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5). Although defendant stated that his wife struck him first, he admitted that he took the ash tray from her and struck her at least three times, causing severe injuries. Defendant's recitation of the events negates a defense of justification or intoxication, and the court was not obliged to expand upon the inquiry conducted by the prosecutor (see, People v. Smith, 148 A.D.2d 980, 539 N.Y.S.2d 216, lv. denied 74 N.Y.2d 747, 545 N.Y.S.2d 122, 543 N.E.2d 765; People v. Bruno, 147 A.D.2d 490, 537 N.Y.S.2d 588).
The People concede that the count alleging assault in the second degree was an inclusory concurrent count and that defendant's conviction for that charge should be reversed (see, CPL 300.40[3][b]; People v. Allen, 147 A.D.2d 352, 537 N.Y.S.2d 174, lv. denied 73 N.Y.2d 1010, 541 N.Y.S.2d 765, 539 N.E.2d 593). Accordingly, we modify the judgment to reverse that conviction and to dismiss the second count of the indictment.
Judgment unanimously modified on the law and as modified affirmed.
All concur, except DOERR, J.P., and DENMAN, J., who dissent and vote to reverse the judgment, vacate the plea and reinstate the indictment, in the following Memorandum:
Contrary to the view of the majority, we believe that the plea proceedings were glaringly flawed and that the judgment should be reversed and the matter remitted for further proceedings on the indictment.
Defendant was indicted for assault in the first degree and assault in the second degree based on a beating he administered to his wife when he found her in bed with another man. We note that defendant pled to both counts of the indictment and thus fared no better than if he had been found guilty after trial. At the outset of the plea proceedings, defense counsel indicated to the court that defendant had great difficulty in making the decision to enter the plea. In spite of that, the court informed defendant that he either had to accept the plea offer "today" or go to trial. The Assistant District Attorney took over the plea colloquy and attempted to elicit defendant's admission that he had intended to inflict physical injury on his wife. Defendant indicated that his...
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