Opinion
12-29-2016
The PEOPLE of the State of New York, Respondent, v. Richard E. LAFLOWER, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton, for respondent.
Teresa C. Mulliken, Harpersfield, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton, for respondent.
Before: McCARTHY, J.P., LYNCH, ROSE, CLARK and AARONS, JJ.
ROSE, J.Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered June 19, 2014, convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree.
In November 2013, defendant was charged in an indictment with robbery in the first degree in connection with a holdup at a pharmacy that occurred in 2010. Although surveillance videos and DNA evidence tied defendant to the crime, he claimed that he had no recollection of the events as he was a chronic user of controlled substances in 2010. Notwithstanding his lack of memory, defendant agreed to enter a plea of guilty to attempted robbery in the second degree in satisfaction of the indictment because, although there were minor inconsistencies in the evidence, he believed that the DNA evidence proved that he was the perpetrator. In accordance with the terms of the plea agreement, defendant was sentenced as a second felony offender to four years in prison, to be followed by five years of postrelease supervision. He now appeals.
Defendant's sole contention is that his guilty plea was not knowing, voluntary and intelligent. Preliminarily, we note that, inasmuch as defendant failed to make an appropriate postallocution motion, this claim is unpreserved for our review (see People v. Lunan, 141 A.D.3d 947, 948, 34 N.Y.S.3d 913 [2016] ; People v. Horton, 140 A.D.3d 1525, 1525, 33 N.Y.S.3d 777 [2016] ). Nevertheless, we find that the narrow exception to the preservation rule is applicable because defendant's statement during the plea colloquy that he had no recollection of committing the crime due to drug use raises the unaddressed question of his ability to form the intent to forcibly steal property, an essential element of the crime of attempted robbery (see Penal Law §§ 110.00, 160.10 ; People v. Mateo, 13 A.D.3d 987, 988, 786 N.Y.S.2d 671 [2004], lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484 [2005] ; see generally People v. Serrano, 15 N.Y.2d 304, 308–309, 258 N.Y.S.2d 386, 206 N.E.2d 330 [1965] ). Under these circumstances, defendant's statement "casts significant doubt upon [his] guilt or otherwise calls into question the voluntariness of the plea," such that County Court was required to conduct a further inquiry to ensure that defendant's guilty plea was knowing and voluntary (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, 525 N.E.2d 5 [1988] ; see People v. Mox, 20 N.Y.3d 936, 938, 958 N.Y.S.2d 670, 982 N.E.2d 590 [2012] ; People v. Green, 141 A.D.3d 837, 838, 35 N.Y.S.3d 766 [2016] ). Here, County Court did not conduct such an inquiry or probe into whether defendant understood his right to offer evidence of intoxication to negate the element of intent prior to accepting his guilty plea (see Penal Law § 15.25 ; see also People v. Mox, 20 N.Y.3d at 938–939, 958 N.Y.S.2d 670, 982 N.E.2d 590 ; compare People v. McCray, 139 A.D.3d 1235, 1236, 31 N.Y.S.3d 659 [2016] ; People v. DeCenzo, 132 A.D.3d 1160, 1161, 18 N.Y.S.3d 760 [2015], lv. denied 27 N.Y.3d 996, 38 N.Y.S.3d 106, 59 N.E.3d 1218 [2016] ). Accordingly, County Court erred in accepting the guilty plea and the judgment must be reversed (see People v. Mox, 20 N.Y.3d at 939, 958 N.Y.S.2d 670, 982 N.E.2d 590 ).
ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Broome County for further proceedings not inconsistent with this Court's decision.
McCARTHY, J.P., LYNCH, CLARK and AARONS, JJ., concur.