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People v. McIntosh

Appellate Division of the Supreme Court of New York, Fourth Department
May 27, 1988
140 A.D.2d 948 (N.Y. App. Div. 1988)

Opinion

May 27, 1988

Appeal from the Supreme Court, Erie County, Marshall, J.

Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.


Judgment unanimously reversed on the law, plea vacated and defendant remanded to Supreme Court, Erie County, for further proceedings on the indictment. Memorandum: Defendant was convicted, upon his guilty plea, of attempted murder in the first degree. During the plea allocution, defendant insisted that he did not point a gun at a police officer and that, when he first saw the officer, he threw the gun to the ground, causing it to fire accidentally. Once defendant cast doubt upon his guilt by denying that he committed an essential element of the crime, the court should not have accepted the plea without making further inquiry into the basis for it to ensure that the defendant was aware of what he was doing (see, People v Serrano, 15 N.Y.2d 304; People v Bouges, 129 A.D.2d 967; People v Sobczak, 105 A.D.2d 1053).

We reject the People's argument that because defendant failed to move to vacate the plea or judgment, the issue was not preserved for our review. Where, as here, the record of the plea proceedings reveals the insufficiency, the plea allocution can be reviewed on appeal (People v Angelakos, 70 N.Y.2d 670; People v Cooks, 67 N.Y.2d 100; People v Sobczak, supra). Accordingly, we vacate the plea and remand defendant for further proceedings on the indictment.


Summaries of

People v. McIntosh

Appellate Division of the Supreme Court of New York, Fourth Department
May 27, 1988
140 A.D.2d 948 (N.Y. App. Div. 1988)
Case details for

People v. McIntosh

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRED McINTOSH…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 27, 1988

Citations

140 A.D.2d 948 (N.Y. App. Div. 1988)

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