PEOPLE v. NELSON (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25[2] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (§ 160.15[4] ) involving a separate incident.  County Court sentenced defendant to concurrent terms of incarceration.

Defendant contends that his guilty plea in appeal No. 1 should be vacated because his statements during the plea colloquy described an intentional shooting and negated the elements of depraved indifference and recklessness.  At the outset, we agree with defendant that his challenge implicates the voluntariness of the plea and thus survives his waiver of the right to appeal (see People v. Jones, 64 A.D.3d 1158, 1158, 881 N.Y.S.2d 782 [4th Dept. 2009], lv denied 13 N.Y.3d 860, 891 N.Y.S.2d 695, 920 N.E.2d 100 [2009];  People v. Maynard, 59 A.D.3d 1031, 1031–1032, 872 N.Y.S.2d 782 [4th Dept. 2009] ).  Defendant did not move to withdraw the plea or vacate the judgment of conviction, however, and he thus failed to preserve his challenge for our review (see People v. Wilkes, 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ).  Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation requirement inasmuch “ ‘as defendant made no statements during the plea allocution that negated an element of the crime or otherwise called into doubt his guilt or the voluntariness of his plea’ ” (People v. Davis, 136 A.D.3d 1220, 1221, 25 N.Y.S.3d 727 [3d Dept. 2016], lv denied 27 N.Y.3d 1068, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016];  see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).  During the plea colloquy, defendant admitted that he and his codefendant fired multiple gunshots in the direction of a group of people, which constitutes “a quintessential example of depraved indifference to human life” (People v. Timmons, 78 A.D.3d 1241, 1243, 910 N.Y.S.2d 290 [3d Dept. 2010], lv denied 16 N.Y.3d 837, 921 N.Y.S.2d 202, 946 N.E.2d 190 [2011];  see People v. Ramos, 19 N.Y.3d 133, 136, 946 N.Y.S.2d 83, 969 N.E.2d 199 [2012] ).  Contrary to defendant's contention, we conclude that his statements during the plea colloquy did not suggest that he was “guilty of an intentional shooting [and] no other” (People v. Wall, 29 N.Y.2d 863, 864, 328 N.Y.S.2d 170, 278 N.E.2d 341 [1971] ), nor did they trigger the court's duty to “inquire further to ensure that defendant's guilty plea [was] knowing and voluntary” (Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

In light of our determination in appeal No. 1, there is no basis to reverse the judgment in appeal No. 2 and vacate defendant's plea of guilty (see People v. Richardson, 132 A.D.3d 1313, 1316, 17 N.Y.S.3d 245 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016];  cf. People v. Fuggazzatto, 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159 [1984] ).