PEOPLE v. WHITE (2010)

 On appeal from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder] ), defendant contends that his guilty plea was not knowingly, voluntarily and intelligently entered.  “[A]lthough defendant failed to preserve that contention for our review, we conclude that his statements during the plea colloquy cast significant doubt upon his guilt with respect to [that crime], and thus this case falls within the exception to the preservation requirement” (People v. Jones, 64 A.D.3d 1158, 1159, 881 N.Y.S.2d 782, lv. denied 13 N.Y.3d 860, 891 N.Y.S.2d 695, 920 N.E.2d 100, citing People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Defendant stated during the plea colloquy that he and a codefendant were armed, respectively, with a rifle and a shotgun, and that they searched for the victim and, upon locating him, shot him at close range.   Defendant also stated that he fired at the victim.   Based upon his description of the two-on-one shooting, “defendant is ‘guilty of an intentional shooting or no other’ ” (People v. Gonzalez, 302 A.D.2d 870, 871-872, 755 N.Y.S.2d 146, affd. 1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273, quoting People v. Wall, 29 N.Y.2d 863, 864, 328 N.Y.S.2d 170, 278 N.E.2d 341;  see People v. Payne, 3 N.Y.3d 266, 270, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975).   Thus, the factual allocution failed to establish that defendant acted recklessly or with depraved indifference (see Gonzalez, 1 N.Y.3d at 467-468, 775 N.Y.S.2d 224, 807 N.E.2d 273).   We therefore reverse the judgment of conviction, vacate the plea and remit the matter to County Court for further proceedings on the indictment.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated and the matter is remitted to Monroe County Court for further proceedings on the indictment.

MEMORANDUM: