Opinion
597 KA 19-00108
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Montreal HERNANDEZ, Defendant-Appellant.
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 Supreme Court, Monroe County, for further proceedings on the indictment.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25 [2] ), defendant contends that Supreme Court erred in accepting his plea. We agree. Although we agree with the People that defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Rosario , 166 A.D.3d 1498, 1498, 86 N.Y.S.3d 367 [4th Dept. 2018] ), this case nevertheless falls within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; Rosario , 166 A.D.3d at 1498, 86 N.Y.S.3d 367 ). Where a defendant's recitation of the facts "negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered" ( Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Homer , 233 A.D.2d 934, 935, 649 N.Y.S.2d 574 [4th Dept. 1996] ; People v. Freville , 226 A.D.2d 1100, 1100-1101, 642 N.Y.S.2d 108 [4th Dept. 1996] ; see generally People v. Mox , 20 N.Y.3d 936, 938-939, 958 N.Y.S.2d 670, 982 N.E.2d 590 [2012] ).
Here, defendant's factual recitation negated at least one element of the crime. Specifically, defendant negated the "intent to commit a crime therein" element of burglary ( Penal Law § 140.25 ) because his factual recitation contradicted any allegation that "he intended to commit a crime in the apartment other than his trespass" ( People v. Lewis , 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005] ; see § 140.25 ). Criminal trespass in the second degree "cannot itself be used as the sole predicate crime in the ‘intent to commit a crime therein’ element of burglary" ( Lewis , 5 N.Y.3d at 551, 807 N.Y.S.2d 1, 840 N.E.2d 1014 ). The court thus had a duty to conduct an inquiry to ensure that defendant understood the nature of the crime (se Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Instead, the court stated, "I just want to make sure ... [that] you still accept [the plea deal], because you have an absolute right to go to trial ... I think you understand ... [t]hat your defense of you going to the bathroom may be a difficult sell to a jury." Because that minimal inquiry by the court did not clarify the nature of the crime in order to ensure that the plea was intelligently entered, the court erred in accepting the guilty plea. We therefore reverse the judgment, vacate the plea, and remit the matter to Supreme Court for further proceedings on the indictment (see Rosario , 166 A.D.3d at 1499, 86 N.Y.S.3d 367 ).