Summary
In People v Simone (179 A.D.2d 694), for example, the appellate court reversed the defendant's conviction by plea to attempted robbery in the first degree where the trial court failed to secure such a waiver following the defendant's admission that he had "`ingested enough [alcohol] so that it totally blotted [his] memory or a great deal of [his] memory as to what happened'". (Supra, at 695.)
Summary of this case from People v. MiddletonOpinion
January 13, 1992
Appeal from the County Court, Putnam County (Sweeny, J.).
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the County Court, Putnam County, for further proceedings consistent herewith.
During the plea proceedings at bar, the defendant answered affirmatively to the court's inquiry as to whether he had "ingested enough [alcohol] so that it totally blotted [his] memory or a great deal of [his] memory as to what happened". Additionally, he stated, again in response to the court, that he understood that "voluntarily taking drugs and that affecting [his] ability to think and so on is no defense to criminal action". There was no inquiry as to whether the defendant was knowingly waiving the possible defense of intoxication (see, Penal Law § 15.25). This was error. "It is well settled that where the defendant's assertions * * * raise the possibility of a defense, the trial court is obligated to conduct further inquiry" (People v. Quiles, 72 A.D.2d 610). At bar, an additional inquiry should have been made to clarify whether the defendant was asserting that he had been intoxicated to such degree as to negate intent, and if so, whether he knowingly waived this potential defense (see, People v. Quiles, supra; see also, People v. Zeth, 148 A.D.2d 960, 961; People v. Braman, 136 A.D.2d 382, 384-385). Contrary to the People's contention, that error did not require preservation by motion to withdraw the plea (see, People v. Lopez, 71 N.Y.2d 662, 666; People v. Serrano, 15 N.Y.2d 304; cf., People v. Carey, 168 A.D.2d 686; People v. Quiles, supra).
In light of this disposition, we do not reach the defendant's remaining contention. Bracken, J.P., Kunzeman, Eiber, Balletta and Ritter, JJ., concur.