PEOPLE v. HALL (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3] ) and two counts of robbery in the second degree (§ 160.10[1], [2][b] ). We agree with defendant that the plea with respect to robbery in the first degree is invalid based on the factual insufficiency of the plea allocution with respect to that crime.   Although defendant failed to preserve his contention for our review by failing to move to withdraw his plea or to vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5), we conclude that this case falls within the narrow exception to the preservation requirement because his “recitation of the facts underlying [that] crime ․ clearly cast [ ] significant doubt upon [his] guilt” (id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  see People v. Hinckley, 50 A.D.3d 1466, 856 N.Y.S.2d 399, 2008 WL 1838071 [Apr. 25, 2008] ).   Supreme Court was informed during the plea colloquy that the gun used by defendant during the alleged commission of robbery in the first degree was an unloaded BB gun and, although it was pointed at the victim's temple, the plea allocution did not indicate that it was used as a dangerous instrument within the meaning of Penal Law § 10.00(13) (see People v. Wasson, 266 A.D.2d 701, 701 N.Y.S.2d 118;   People v. Espinoza, 253 A.D.2d 983, 680 N.Y.S.2d 122).   An element of robbery in the first degree is that defendant “[u]ses or threatens the immediate use of a dangerous instrument” during the commission of the robbery (§ 160.15[3] ) and, “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” (Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Here, the court failed to conduct the requisite inquiry.

We therefore modify the judgment accordingly (see Wasson, 266 A.D.2d at 702, 701 N.Y.S.2d 118), and we remit the matter to Supreme Court for further proceedings on the first count of the indictment only, in view of the fact that this case does not involve a negotiated plea agreement (cf. Hinckley, 50 A.D.3d 1466, 856 N.Y.S.2d 399).

 To the extent that the contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097), we note that defendant failed to preserve that contention for our review (see People v. Tantao, 41 A.D.3d 1274, 838 N.Y.S.2d 757;  People v. Fulford, 296 A.D.2d 661, 662, 745 N.Y.S.2d 596).   We further note that, to the extent that defendant's contention is based on defense counsel's alleged failure to negotiate a plea bargain, it involves matters outside the record and thus is properly raised by way of a motion pursuant to CPL article 440 (see People v. Ballard, 13 A.D.3d 670, 672, 785 N.Y.S.2d 608, lv. denied 4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87;  People v. James, 269 A.D.2d 845, 846, 703 N.Y.S.2d 793).

Finally, the sentence imposed on the remaining counts is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of robbery in the first degree and vacating the plea with respect to that crime and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County, for further proceedings on the first count of the indictment only.

MEMORANDUM: