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

484
KA 11-02604
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HADJI S. HILL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE YOON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (James J.
Piampiano, J.), rendered October 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of manslaughter in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
guilty plea, of manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that County Court erred in accepting his
plea. According to defendant, his plea was not knowingly and
voluntarily entered because the court failed to advise him that
justification was a defense to manslaughter in the first degree. We
reject that contention.

     When defendant was initially charged with murder in the second
degree for stabbing his uncle to death, he pleaded guilty to
manslaughter in the first degree in return for a sentence promise of
15 years in prison. Although we affirmed the judgment of conviction
(People v Hill, 66 AD3d 1471), the Court of Appeals reversed our order
and vacated the plea because “defendant denied that he intended to
cause serious physical injury to his uncle, thus negating the intent
element of first-degree manslaughter” (People v Hill, 16 NY3d 811,
814). Upon remittal, the case proceeded to a jury trial, during which
defendant again pleaded guilty to manslaughter in the first degree,
but this time with a sentence promise of 12 years. During the plea
colloquy, the court advised defendant that, by pleading guilty, he
would be waiving the justification defense he asserted at trial with
respect to the murder charge. The court later imposed the promised
sentence, and defendant did not move to withdraw his plea or to vacate
the judgment of conviction. Contrary to defendant’s contention, the
                                 -2-                           484
                                                         KA 11-02604

court was not obligated to inform him prior to the plea that
justification is also a defense to manslaughter in the first degree,
and that he was waiving such defense by pleading guilty.

      Defendant failed to preserve for our review his contention that
the plea was not knowingly or voluntarily entered (see People v
Darling, 125 AD3d 1279, 1279), and we conclude that this case does not
fall within the narrow preservation requirement set forth in People v
Lopez (71 NY2d 662, 666), such that the court had a duty to inquire
further into the voluntariness of the plea (see Darling, 125 AD3d at
1279). “ ‘[W]hen a criminal defendant waives the fundamental right to
trial by jury and pleads guilty, due process requires that the waiver
be knowing, voluntary and intelligent’ ” (People v Mox, 20 NY3d 936,
938, quoting People v Hill, 9 NY3d 189, 191, cert denied 553 US 1048).
Although “no catechism is required in connection with the acceptance
of a plea” (People v Goldstein, 12 NY3d 295, 301), it is well settled
that, “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,
. . . the trial court has a duty to inquire further to ensure that
defendant’s guilty plea is knowing and voluntary” (Lopez, 71 NY2d at
666).

     Here, defendant did not suggest during his plea colloquy that he
acted in self-defense when he stabbed the victim, nor did he otherwise
say anything that cast doubt upon his guilt or called into question
the voluntariness of the plea (cf. Mox, 20 NY3d at 938-939; People v
Dukes, 120 AD3d 1597, 1598-1599). Thus, the court was not required to
inquire further of defendant to ensure that his plea was knowingly and
voluntarily entered. Although it is true, as defendant points out,
that defense counsel raised the justification defense in his opening
statement during the jury trial that ended with the plea, defendant
cites no authority for the proposition that a court must conduct a
Lopez inquiry with respect to all possible defenses regardless of
whether they are referenced by the defendant during the plea colloquy.




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
