People v. Morton

Full title: PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. ROBERT MORTON…

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

Date published: Nov 15, 2002

299 A.D.2d 918 (N.Y. App. Div. 2002)

750 N.Y.S.2d 538

Opinion

KA 01-01978

November 15, 2002.

Appeal from a judgment of Jefferson County Court (Martusewicz, J.), entered June 11, 2001, convicting defendant upon his plea of guilty of attempted burglary in the third degree.

VICTOR BERGER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (ANTHONY M. NEDDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: HAYES, J.P., HURLBUTT, KEHOE, BURNS, AND LAWTON, JJ.

ORDER AND MEMORANDUM

It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed.

All concur except Hurlbutt, J., who dissents and votes to reverse in the following Memorandum:

I respectfully dissent. Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the third degree (Penal Law § 110.00, 140.20). During the plea colloquy, defendant, who was charged as an accomplice in a burglary, admitted that he "help[ed] someone" enter the victim's building, but denied that he intended to commit a crime when the building was entered. Upon County Court's inquiry whether his accomplice intended to commit a crime, defendant responded "yes," and the guilty plea was then accepted by the court. That was error.

Where a defendant's factual recitation "negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered" ( People v. Lopez, 71 N.Y.2d 662, 666). Further, "at a minimum the record of the subsequent 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 A.D.2d 675, 678). Here, defendant's denial of criminal intent negated an essential element of the crime of burglary, and his affirmative response to the court's inquiry concerning the accomplice's criminal intent was not sufficient to remove the doubt about defendant's guilt because the court failed to establish that defendant was aware of the accomplice's intent to commit a crime at the time the building was entered ( see People v. Freville, 226 A.D.2d 1100; see also Ocasio, 265 A.D.2d at 676-677; cf. People v. Marcus, 278 A.D.2d 670). I therefore would reverse the judgment, vacate the plea of guilty and remit the matter to Jefferson County Court for further proceedings on the indictment.