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THE AFORD PLEA WAS NOT SUPPORTED BY STRONG EVIDENCE OF DEFENDANT’S INTENT TO COMMIT GRAND LARCENY, THE PLEA WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department vacated defendant’s Alford plea finding that the record lacked the requisite strong evidence of actual guilt. The defendant and two codefendants were seen by a security guard heading toward the exit of a store with unpaid merchandise in a cart. They abandoned the merchandise near the exit, got in a car, and led the police on a high speed chase resulting in two accidents and injury to a police officer. The Alford plea issue was not preserved but the Fourth Department reviewed it in the interest of justice. The Fourth Department found the evidence of intent to commit grand larceny lacking:

We agree with defendant, however, that County Court erred in accepting his Alford plea because the record lacks the requisite strong evidence of his actual guilt … . Although defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacate the judgment of conviction … , and this case does not fall within the rare exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]…), we exercise our power to review defendant’s unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]…).

The record, which includes sworn grand jury testimony, sufficiently establishes that defendant “exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights” … , and that the value of such property exceeded one thousand dollars… . We conclude, however, that the record lacks strong evidence that defendant acted with the intent to deprive the owner of the property or to appropriate the property to himself or to a third person … . Thus, inasmuch as the record lacks strong evidence that defendant acted with the intent to commit grand larceny in the fourth degree, the record also lacks strong evidence that defendant caused injury to a person in the course of and in furtherance of the commission or attempted commission of that crime or during the immediate flight therefrom … . People v Johnson, 2018 NY Slip Op 08802, Fourth Dept 12-21-18

 

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