Forcing Defendant to Go to Trial When His Expert on the Intoxication Defense Was Not Available Rendered Defendant’s Guilty Plea Involuntary and Coerced

The Third Department vacated defendant’s plea, finding that it was involuntary and coerced.  Defendant admitted shooting and killing his brother, but it was clear that defendant was highly intoxicated at the time of the offense.  County Court set the matter down for trial at a time the defendant’s expert on the intoxication defense was not available, after the court concluded there was no merit to the defense. During the plea colloquy the defendant answered “to the best of my recollection” when asked whether he had caused the death of his brother. Under these circumstances the waiver of appeal and the failure to preserve the error did not preclude review:

…[D]efendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal but is unpreserved for our review in the absence of a motion to withdraw his plea … . That said, we nonetheless are persuaded that the narrow exception to the preservation requirement was triggered here, as defendant’s qualified response — “[t]o the best of my recollection” — to County Court’s key question during the course of the plea allocution cast doubt upon his guilt and/or otherwise called into question the voluntariness of his plea, thereby obligating County Court to undertake further inquiry prior to accepting defendant’s plea … — particularly in view of the transcripts of the 911 call, wherein defendant clearly indicated that he had been drinking on the day of the shooting, and defendant’s Town Court arraignment, wherein the Town Judge expressed concerns regarding defendant’s ability to understand the charges against him due to his apparent level of intoxication. We also find merit to defendant’s claim that his plea was coerced. As noted previously, defendant entered his plea of guilty in response to the prospect of proceeding to trial within a matter of days and without an expert witness, and such plea was entered on the heels of County Court’s questionable, pretrial analysis as to the viability of defendant’s asserted intoxication defense. Under these circumstances, we are unable to conclude that defendant’s guilty plea was knowing, intelligent and voluntary. People v Lang, 2015 NY Slip Op 02809, 3rd Dept 4-2-15