         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
510
KA 09-01107
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL MOX, DEFENDANT-APPELLANT.


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

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (ELIZABETH CLIFFORD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered September 18, 2008. 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
reversed on the law, the plea is vacated and the matter is remitted to
Monroe County Court for further proceedings on the indictment.

     Memorandum: Defendant was indicted for the crime of murder in
the second degree (Penal Law § 125.25 [1]), and he now appeals from a
judgment convicting him upon his plea of guilty of the lesser included
offense of manslaughter in the first degree (§ 125.20 [2]). “Although
the contention of defendant that his plea was not knowingly,
intelligently and voluntarily entered survives his valid waiver of the
right to appeal, defendant failed to preserve that contention for our
review by failing to move to withdraw the plea or to vacate the
judgment of conviction on the ground[] now raised” (People v
VanDeViver, 56 AD3d 1118, 1118, lv denied 11 NY3d 931, 12 NY3d 788;
see People v McKeon, 78 AD3d 1617, 1618; People v Johnson, 60 AD3d
1496, lv denied 12 NY3d 926). We agree with defendant, however, that
this is one of those rare cases in which preservation is not required
because “the defendant’s recitation of the facts underlying the crime
pleaded to clearly cast[] significant doubt upon the defendant’s guilt
or otherwise call[ed] into question the voluntariness of the plea”
(People v Lopez, 71 NY2d 662, 666). County Court therefore had a
“duty to inquire further to ensure that defendant’s guilty plea [was]
knowing and voluntary” (id.), and we conclude that the court failed to
fulfill that duty. “[A]t a minimum the record of the . . . plea
proceedings must reflect . . . that defendant’s responses to the
court’s subsequent questions removed the doubt about defendant’s
guilt” (People v Ocasio, 265 AD2d 675, 678). Here, defendant’s plea
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                                                         KA 09-01107

allocution did not remove such doubt with respect to the intent
element of manslaughter in the first degree (§ 125.20 [2]; see People
v McCollum, 23 AD3d 199). Indeed, defendant’s plea allocution
suggested that his underlying schizoaffective disorder, for which he
was unmedicated, caused him to be in a “psychotic state” at the time
of the crime. Thus, defendant’s plea allocution in fact negated the
element of intent, and the court should not have “accept[ed] the plea
without making further inquiry to ensure that defendant [understood]
the nature of the charge and that the plea [was] intelligently
entered” (Lopez, 71 NY2d at 666).

     Based on our decision, we see no need to address defendant’s
remaining contentions.

     All concur except SMITH, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent. Even assuming,
arguendo, that the majority is correct that this is one of those rare
cases for which preservation is not required (see People v Lopez, 71
NY2d 662, 666), I nevertheless conclude that County Court conducted a
sufficient inquiry to ensure that defendant’s plea was entered
knowingly and voluntarily, and that defendant’s statements during the
plea colloquy established all of the elements of the crime to which he
pleaded guilty (see id.).

     As noted by the majority, defendant pleaded guilty to
manslaughter in the first degree as a lesser included offense of the
crime of murder in the second degree, as charged in the indictment.
It is well settled that, in pleading guilty to manslaughter pursuant
to Penal Law § 125.20 (2), a defendant must admit that he or she
intentionally caused the death of the victim but did so under
circumstances demonstrating that he or she was acting under the
influence of an extreme emotional disturbance for which there was a
reasonable explanation or excuse (see id.; § 125.25 [1] [a]). Here,
the plea colloquy established all of the elements of the crime of
manslaughter in the first degree under that subdivision, inasmuch as
defendant admitted during the plea colloquy that he caused the death
of the victim, his 80-year-old father, by repeatedly stabbing him and
bludgeoning him. Defendant’s contention with respect to the alleged
insufficiency of the plea colloquy is that County Court failed to make
a sufficient inquiry into the defense of not guilty by reason of
insanity after defendant made statements indicating that he had
stopped taking his medication and was in a psychotic state at the time
of the killing. The record establishes, however, that after making
those statements, both defendant and his attorney unequivocally waived
the defense of not guilty by reason of mental disease or defect. In
addition, defendant was evaluated with respect to that defense by a
psychiatrist on defendant’s behalf, who opined that defendant suffered
from chronic schizoaffective disorder with acute exacerbation, i.e., a
mental disease or defect that impaired his reason to the point that he
did not know the nature and quality of his actions. He was also
evaluated by a psychiatrist on behalf of the People, who essentially
agreed with the diagnosis of the defense psychiatrist but opined that
defendant did in fact understand the nature and quality of his acts.
After months of discussion between defense counsel, the prosecutor and
                                 -3-                           510
                                                         KA 09-01107

the court, the plea offer to the lesser charge of manslaughter was
made. Thus, the record unequivocally establishes that the defense of
not guilty by reason of insanity was fully explored by the court and
counsel, and that defendant and his attorney waived that defense.
Inasmuch as “defendant was competent to stand trial, he was likewise
competent to make decisions regarding his defense” (People v
Ciborowski, 302 AD2d 620, 622, lv denied 100 NY2d 579), and the court
therefore properly accepted defendant’s waiver of that defense (see
People v Boatwright, 293 AD2d 286, lv denied 98 NY2d 673; People v
Saletnik, 285 AD2d 665, 667; People v Rogers, 163 AD2d 337, lv denied
76 NY2d 943). In my view, no further inquiry was necessary under
these circumstances.




Entered:   May 6, 2011                         Patricia L. Morgan
                                               Clerk of the Court
