People v. Thomson

• Decision Date: 04 January 2001
• Parties: (A.D.3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARK T. THOMSON, Appellant. 10878 11022 : THIRD JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 171

719 N.Y.S.2d 171 (A.D.3 Dept. 2001)

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

10878

11022

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

January 4, 2001

Carl J. Silverstein, Monticello, for appellant.

Lawrence Weist, Acting District Attorney (Kimberly A. Mariani of counsel), Albany, for respondent.

Before: Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ.

Cardona, P.J.

Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered December 23, 1997, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree, and (2) by permission, from an order of said court (Rosen, J.), entered November 30, 1998, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged in a 13-count indictment with various crimes arising from his theft of a bread truck in Saratoga County and ensuing police chase which resulted in his apprehension in Albany County. The charges included the crime of attempted murder in the first degree based upon allegations that defendant intentionally drove the truck into the driver's side of an occupied police vehicle. In satisfaction of all charges, defendant pleaded guilty to the reduced charge of attempted murder in the second degree. Following imposition of the agreed-upon prison sentence of 12½ to 25 years, defendant appealed from the judgment and also made a motion, pursuant to CPL 440.10, to vacate it. County Court denied the motion without a hearing. Thereafter, this Court granted defendant permission to appeal the order denying his motion to vacate and consolidated the two appeals.

Defendant argues that County Court committed reversible error in denying his motion to vacate the judgment without first conducting a hearing because his attorney did not provide him with effective assistance of counsel. In support of his claim, he asserts that his attorney failed to advise him that criminal intent was a necessary element of the crime of attempted murder in the second degree and that such element could have been negated by the fact that he was intoxicated at the time the subject crime was committed. Based upon our review of the record, we find that defendant's contention has merit.

The crime of attempted murder in the second degree requires the specific intent to cause the death of another person (see, Penal Law § 125.25 [1]). Intent is an element that can be negated by the defense of intoxication (see, e.g., People v Osgood, 254 AD2d 571, 572) and it has been held that a defense counsel's failure to offer available evidence of a defendant's intoxication in the trial of an intent crime "constituted 'true ineffectiveness'" (People v Norfleet, 267 AD2d 881, 883, lv denied 95 NY2d 801, quoting People v Baldi, 54 NY2d 137, 146). A defendant's awareness of the right to present such evidence is essential to a knowing plea of guilty (see, People v Maldonado, 254 AD2d 574; People v...