People v. Howard ( 1992 )

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (De Lury, J.), rendered July 11, 1990, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, the plea is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The defendant pleaded guilty to intentional murder in connection with the shooting death of Dennis Braithwaite. Under the acting in concert theory charged in the indictment, the defendant may be held accessorially liable for the murder only if it is shown that he shared his accomplices’ intent to kill the victim (see, Penal Law § 20.00; People v Flayhart, 72 NY2d 737; People v Akptotanor, 158 AD2d 694).

However, at his plea allocution, the defendant admitted only to pointing Braithwaite out to the accomplices who wished to "rough him up” in order to recover money he had allegedly stolen from one of them. Indeed, upon further inquiry, the defendant specifically denied any knowledge that his accomplices intended to kill the victim. Where a defendant denies intent to commit the crime to which he is pleading guilty, an essential element is negated and the court may not accept the plea without making further inquiry into whether, in fact, the defendant is guilty and apprising him of the defense implicated (see, People v Thomas, 159 AD2d 529; People v Bendross, 153 AD2d 75). Since the factual recitation established, at most, manslaughter in the first degree, the court erred in accepting the defendant’s plea to intentional murder. Accordingly, the plea is vacated. Bracken, J. P., Sullivan, Harwood, Rosenblatt and Copertino, JJ., concur.