        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

688
KA 04-02820
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KELVIN ROBINSON, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Peter L.
Broderick, Sr., J.), rendered November 3, 2004. The judgment
convicted defendant, upon his plea of guilty, of murder in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated and the matter is
remitted to Niagara County Court for further proceedings on the
indictment.

     Memorandum: We previously granted defendant’s motion for a writ
of error coram nobis (People v Robinson, 98 AD3d 1324). We therefore
review, de novo, defendant’s appeal from a judgment convicting him,
upon his plea of guilty in 2004, of depraved indifference murder
(Penal Law § 125.25 [2]) in connection with the stabbing death of his
wife.

     Defendant’s contention that his plea was not knowing and
voluntary survives his waiver of the right to appeal (see People v
Seaburg, 74 NY2d 1, 10). Preservation of the contention is not
required inasmuch as defendant correctly contends that his statements
during the plea colloquy cast significant doubt upon his guilt (see
People v Mox, 84 AD3d 1723, 1724, affd 20 NY3d 936). Defendant stated
that he struggled with his wife for control of the knife and that he
acted recklessly when he stabbed her, and thus his statements suggest
that he did not act with the requisite “depraved indifference state of
mind” (People v Jones, 64 AD3d 1158, 1159, lv denied 13 NY3d 860).
Indeed, it is well established that a “one-on-one . . . knifing . . .
can almost never qualify as depraved indifference murder” (People v
Payne, 3 NY3d 266, 272, rearg denied 3 NY3d 767; see People v Suarez,
6 NY3d 202, 211-212). We therefore conclude that County Court erred
by accepting the plea without further inquiry to ensure that
                                 -2-                          688
                                                        KA 04-02820

defendant’s plea was knowing and voluntary (see Mox, 84 AD3d at 1724).
We note that, “[a]lthough defendant entered his guilty plea before the
Court of Appeals decided [People v] Feingold [(7 NY3d 288, 296)],
which definitively stated for the first time that the depraved
indifference element of depraved indifference murder is a culpable
mental state rather than the circumstances under which the killing is
committed . . . , we nevertheless conclude that Feingold applies
herein” inasmuch as defendant’s direct appeal in People v Robinson (41
AD3d 1314, lv denied 9 NY3d 880) was pending when Feingold was decided
(Jones, 64 AD3d at 1159). We therefore reverse the judgment of
conviction, vacate the plea and remit the matter to County Court for
further proceedings on the indictment.




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
