Judges: Main
Filed Date: 7/9/1987
Status: Precedential
Modified Date: 10/28/2024
OPINION OF THE COURT
Defendant was indicted for manslaughter in the second
Nevertheless, we find reversal in this case to be warranted in the interest of justice. The Court of Appeals has stated that during a plea allocution, "the requisite elements [of the crime to which the defendant is pleading guilty] should appear from the defendant’s own recital” (People v Serrano, 15 NY2d 304, 308), although a plea can be accepted in the absence of the defendant’s personal recitation when there is no suggestion on the record that the plea is improvident or baseless (see, People v Nixon, 21 NY2d 338, 350, cert denied sub nom. Robinson v New York, 393 US 1067; People v Langhorn, 119 AD2d 844, lv denied 68 NY2d 758). In this case, the elements of manslaughter in the second degree should have been demonstrated: the creation of a substantial and unjustifiable risk, an awareness and disregard of the risk on the part of the defendant, and a resulting death (People v Licitra, 47 NY2d 554, 558). However, these elements do not necessarily appear from defendant’s recital of the events of March 17, 1986. Moreover, we do not find in the record a basis for defendant’s guilty plea sufficient to show that the plea entered was not improvident. This is not a case in which the defendant has pleaded guilty to a less serious crime than the one with which he was charged. Accordingly, defendant’s guilty plea should be vacated.
We also note our disapproval of County Court’s method of
Mahoney, P. J., Casey, Mikoll and Levine, JJ., concur.
Judgment reversed, as a matter of discretion in the interest of justice, defendant’s plea of guilty vacated, and matter remitted to the County Court of Albany County for further proceedings not inconsistent herewith.
We note that although defendant purportedly waived his right to appeal during the plea allocution, he now contends, and the People concede, that defendant’s waiver cannot be shown to have been knowing, intelligent and voluntary, and therefore the waiver was ineffective (cf., People v Harvey, 124 AD2d 943, lv denied 69 NY2d 746).