People v. Thomson, 14432.

• Decision Date: 31 December 2003
• Docket Number: 14432.
• Citation: 2 A.D.3d 1214,2003 NY Slip Op 19906,768 N.Y.S.2d 846
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARK T. THOMSON, Appellant.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 1214

768 N.Y.S.2d 846

2003 NY Slip Op 19906

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARK T. THOMSON, Appellant.

14432.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 31, 2003.

Appeal, by permission, from an order of the County Court of Saratoga County (Scarano, J.), entered November 26, 2002, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of attempted manslaughter in the first degree, without a hearing.

Carpinello, J.

In 1997, defendant stole a vehicle in Albany County and led police on a high speed chase throughout both Albany and Saratoga Counties. At the tail end of this chase, defendant drove the stolen vehicle into occupied police vehicles. The incident resulted in separate indictments being handed up against him in Albany and Saratoga Counties. The highest count charged in each indictment was attempted murder in the first degree.

Each case was resolved by a guilty plea. Represented by the same attorney in both cases, defendant pleaded guilty to attempted murder in the second degree in satisfaction of the Albany County indictment and attempted manslaughter in the first degree in satisfaction of the Saratoga County indictment. The Saratoga County judgment was affirmed by this Court in 1999 following the filing of an Anders brief by then appellate counsel (265 AD2d 740 [1999]). Thereafter, however, defendant successfully moved to vacate the Albany County judgment on the ground of ineffective assistance of counsel (People v Thomson, 279 AD2d 644 [2001]). Specifically, defendant claimed that he was intoxicated during the incident yet his former attorney failed to advise him that this might constitute a defense to certain of the charged crimes, including attempted murder.^* Defendant then sought to vacate his plea in Saratoga County, the denial of which without a hearing is now before us.

Two grounds were advanced by defendant in support of his application to vacate the plea in Saratoga County, namely, County Court's failure to make a sufficient inquiry into the voluntariness of his plea after he negated an essential element of attempted manslaughter during the plea allocution and ineffective assistance of counsel. The first ground was before us in the prior appeal from the Saratoga County judgment and, thus, our 1999 decision affirming the judgment bars its reconsideration (see e.g. People v Rossney, 186 AD2d 926 [1992], lv denied 81 NY2d 794 [1993]). However, our 2001 decision in the Albany County case, which ultimately resulted in vacatur of the Albany County plea on the ground of ineffective assistance of counsel (see n 1, supra), compels the conclusion that defendant's guilty plea in Saratoga County must also be vacated.

There can be no doubt that both indictments arose out of the same incident and that defendant was represented by the same attorney in both matters. According to defendant, the cases were...