Opinion
1417 KA 14-00475.
12-31-2015
The PEOPLE of the State of New York, Respondent, v. Joseph HARRIS, Defendant–Appellant.
Charles J. Greenberg, Amherst, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Charles J. Greenberg, Amherst, for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.021 ), and attempted promoting prison contraband in the first degree (§§ 110.00, 205.252 ). Defendant was charged in an eight-count indictment with a series of charges, and he pleaded guilty to those two crimes as lesser included offenses of the crimes charged in the third and eighth counts of the indictment, respectively.
Defendant failed to preserve for our review his contention that his guilty plea was not entered knowingly, voluntarily and intelligently (see People v. Darling, 125 A.D.3d 1279, 1279, 1 N.Y.S.3d 717, lv. denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373), and we conclude that, to the extent he pleaded guilty to attempted criminal possession of a weapon, that part of his plea does not fall within the narrow exception to the preservation requirement such that County Court had a duty to inquire further into the voluntariness of the plea with respect to that crime (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; Darling, 125 A.D.3d at 1279, 1 N.Y.S.3d 717). We agree with defendant, however, that the plea of guilty falls within that exception to the extent defendant pleaded guilty to attempted promoting prison contraband. Although “no factual colloquy was required inasmuch as defendant pleaded guilty to a lesser included offense” (People v. Thelbert, 17 A.D.3d 1049, 1049, 793 N.Y.S.2d 784), here, defendant expressly stated during the colloquy that he did not knowingly possess contraband, did not attempt to introduce any contraband into the jail, and did not intend to do so. This negated an element of the crime of attempted promoting prison contraband in the first degree, which requires, inter alia, that he “knowingly and unlawfully makes, obtains or possesses any dangerous contraband” (Penal Law § 205.252 ). Thus, defendant's denials created “that rare case ... where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea[. Consequently,] the trial court [had] a duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary” (Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). The court having failed to do so, we vacate that part of the plea of guilty to attempted promoting prison contraband and remit the matter to County Court for further proceedings on count eight of the indictment.
We note, however, that the People have been deprived of the benefit of their bargain. Thus, upon remittal, “the court should entertain a motion by the People, should the People be so disposed, to vacate the plea ... in its entirety” (People v. Irwin, 166 A.D.2d 924, 925, 561 N.Y.S.2d 676; see People v. Speed, 13 A.D.3d 1083, 1084, 786 N.Y.S.2d 874, lv. denied 5 N.Y.3d 795, 801 N.Y.S.2d 815, 835 N.E.2d 675; see generally People v. Farrar, 52 N.Y.2d 302, 307–308, 437 N.Y.S.2d 961, 419 N.E.2d 864).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating that part of the plea of guilty to attempted promoting prison contraband in the first degree and as modified the judgment is affirmed and the matter is remitted to Livingston County Court for further proceedings.