                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   April 2, 2015                   106217
                                                       106539
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DAVID R. LANG,
                    Appellant.
________________________________


Calendar Date:   February 9, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.

                             __________


      Tendy Law Office, LLC, New York City (Sheila Tendy of
counsel) and Dechert, LLP, New York City (James M. McGuire of
counsel), for appellant.

      Kristy L. Sprague, District Attorney, Elizabethtown (James
E. Martineau Jr. of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeals (1) from a judgment of the County Court of Essex
County (Meyer, J.), rendered August 8, 2013, convicting defendant
upon his plea of guilty of the crime of manslaughter in the first
degree, and (2) by permission, from an order of said court,
entered March 6, 2014, which denied defendant's motion pursuant
to CPL 440.10 to vacate the judgment of conviction, without a
hearing.

      Defendant was indicted and charged with murder in the
second degree and criminal possession of a weapon in the fourth
degree following a June 19, 2012 incident at a farm in the Town
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                                                 106539

of Crown Point, Essex County wherein defendant, then 70 years
old, fatally shot his brother in the head with a rifle.
Following the incident, defendant called 911, reported the
shooting and openly admitted to the 911 dispatcher that he was
the perpetrator. When the dispatcher inquired as to whether
defendant had been drinking, defendant replied, "Of course I've
been drinking. . . . I drink every God damn day!" Defendant was
taken into custody by state troopers responding to the 911 call
and, later that same day, was arraigned in Crown Point Town
Court, at which time the Town Judge indicated that he would "re-
arraign" defendant the following day due to defendant's apparent
level of intoxication.

      Following indictment by an Essex County grand jury, the
matter was scheduled for a trial to commence on July 8, 2013. In
May 2013, defendant and counsel were apprised of the possibility
that defendant's trial might be moved up to June 10, 2013 due to
the adjournment of another trial. In response, defense counsel
advised County Court of his intention to seek an adjournment
based upon, among other things, the unavailability of an expert
witness. When the parties appeared before County Court on June
5, 2013 for a conference, County Court indicated that it indeed
intended to move up defendant's trial to the following week.
Defense counsel objected and requested an adjournment, again
citing the unavailability – due to this new trial date – of an
expert witness relative to defendant's intoxication defense.
County Court thereafter engaged in an extended discussion with
defense counsel with respect to the asserted intoxication defense
– essentially taking the position that, unless counsel could
persuade the court that defendant had a viable defense in this
regard, no adjournment was warranted. In so doing, County Court
compelled defense counsel to lay bare his proof in this regard
and thereafter expressed serious misgivings as to the merits
and/or viability of the subject defense.

      Following a brief off-the-record discussion, the conference
resumed, at which time County Court then inquired as to whether
the People had extended a plea offer. A discussion as to the
possible sentencing parameters ensued and, following another
break in the proceedings, defendant returned to the courtroom and
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pleaded guilty to manslaughter in the first degree in full
satisfaction of the indictment and waived his right to appeal.
During the course of the plea colloquy, County Court recited the
elements of manslaughter in the first degree and asked defendant
whether it was true that, with intent to cause serious physical
injury, he caused the death of his brother, to which defendant
responded, "To the best of my recollection it is, sir." County
Court thereafter sentenced defendant to 15 years in prison
followed by five years of postrelease supervision. Defendant's
subsequent CPL article 440 motion to vacate the judgment of
conviction was denied, and he now appeals from the judgment of
conviction and, by permission, from the order denying his motion
to vacate.

      Preliminarily, the claims raised by defendant in the
context of his CPL article 440 motion – namely, that his plea was
coerced and/or otherwise involuntary – are reviewable upon
defendant's direct appeal from the judgment of conviction and,
hence, are not the proper subject of such a motion (see People v
Hillriegel, 78 AD3d 1381, 1382 [2010]; People v Lagas, 49 AD3d
1025, 1026 [2008], lvs denied 10 NY3d 859, 866 [2008]). Turning
to the merits, defendant's challenge to the voluntariness of his
plea survives his uncontested waiver of the right to appeal but
is unpreserved for our review in the absence of a motion to
withdraw his plea (see People v Jackson, 119 AD3d 1288, 1288
[2014]). That said, we nonetheless are persuaded that the narrow
exception to the preservation requirement was triggered here, as
defendant's qualified response – "[t]o the best of my
recollection" – to County Court's key question during the course
of the plea allocution cast doubt upon his guilt and/or otherwise
called into question the voluntariness of his plea, thereby
obligating County Court to undertake further inquiry prior to
accepting defendant's plea (compare People v Duggins, 114 AD3d
1001, 1002 [2014], lvs denied 23 NY3d 961, 962 [2014]; People v
Morgan, 84 AD3d 1594, 1594 [2011], lv denied 17 NY3d 819 [2011];
People v Beach, 306 AD2d 753, 754 [2003]) – particularly in view
of the transcripts of the 911 call, wherein defendant clearly
indicated that he had been drinking on the day of the shooting,
and defendant's Town Court arraignment, wherein the Town Judge
expressed concerns regarding defendant's ability to understand
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                                                     106539

the charges against him due to his apparent level of
intoxication. We also find merit to defendant's claim that his
plea was coerced. As noted previously, defendant entered his
plea of guilty in response to the prospect of proceeding to trial
within a matter of days and without an expert witness, and such
plea was entered on the heels of County Court's questionable,
pretrial analysis as to the viability of defendant's asserted
intoxication defense.1 Under these circumstances, we are unable
to conclude that defendant's guilty plea was knowing, intelligent
and voluntary. Accordingly, the judgment of conviction is
reversed and defendant's plea is vacated.

        Lahtinen, J.P., McCarthy and Clark, JJ., concur.


      ORDERED that the judgment is reversed, on the law, plea
vacated and matter remitted to the County Court of Essex County
for further proceedings not inconsistent with this Court's
decision.

        ORDERED that the order is affirmed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court


    1
        County Court admittedly did not deny defendant's request
for an adjournment, but the court nonetheless made clear that it
would grant such a request only if defendant could demonstrate
that he had a viable intoxication defense. Absent a viable
defense, County Court reasoned, there was no need for an expert
witness and, hence, no need for an adjournment.
