People v. Lee

¶1We would affirm. Defendant pleaded guilty to one count of assault, first degree (Penal Law, § 120.10, subd 1), arising from the shooting of Louis Ingram, as part of a plea bargain in which he received a sentence of one and one-half to four and one-half years and dismissal of all other counts of a nine-count indictment, including two charges of attempted murder, second degree. In the colloquy at the motion to withdraw, defense counsel made specific reference to defendant’s two written confessions which the court, in a ruling not questioned on appeal, had found after a Huntley hearing to be voluntary and admissible. Defense counsel relied on these confessions, of which court and counsel had clearly been aware at the taking of the plea, as supporting his assertion, adopted by the majority, that defendant “throughout his … confessions” and statements to the police and court consistently maintained that he “never intended to cause any injury.” This position is clearly refuted by the first of these two confessions in which defendant stated that as the two victims, Ingram and Victor Sessions, were attempting to break into his apartment he “shot down through the door so it would hit their legs and not kill anybody” (emphasis added). The shot penetrated the door above the doorknob, causing serious abdominal injuries to Ingram. At the time of the guilty plea, following the court’s ruling on the *962Huntley hearing, defendant again admitted on the record that, with the knowledge that two people were on the other side of the door, he shot at it at close range. We would hold that under these circumstances the court, when the plea was entered, had before it sufficient evidence to support all the elements of assault, first degree (Penal Law, § 120.10, subd 1), including intention to cause serious injury. We note also that in a second written confession (referring to the shooting of Sessions which formed the basis for one attempted murder charge and other counts which were withdrawn as part of the plea bargain), defendant admitted that after Ingram and Sessions left the building he “went out on the porch and shot at the phone booth [where Sessions was placing a call] to scare him away,” causing a head wound to Sessions. At the time of the motion to withdraw the plea he again admitted shooting and injuring Sessions from his porch. Even accepting, for the sake of argument, the majority’s finding that defendant’s statements fail to establish the factual basis for a finding of intention to cause serious physical injury, we would affirm. The court properly exercised its discretion in accepting this plea (see People v Nixon, 21 NY2d 338, cert den sub nom. Robinson v New York, 393 US 1067). It made adequate inquiry, given the circumstances of the case, to ensure that defendant was “aware of what he [was] doing” in making the plea (People v Serrano, 15 NY2d 304, 310; see People v Colon, 77 AD2d 370; cf. People v Beilis, 78 AD2d 1014; People v Broach, 72 AD2d 748). The court, which stated that it had discussed the matter with the defense attorney on many occasions and was mindful of defendant’s two confessions admitted at the Huntley hearing, noted that “there were extenuating circumstances in the case” and, emphasizing the gravity of the charges, ascertained that defendant’s motive in pleading guilty was the fear of a conviction and a substantially longer sentence. Moreover, it has been held that “[a] bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed” (see People v Clairborne, 29 NY2d 950, 951, quoted in People v Kazmarick, 52 NY2d 322, 326; People v Colon, supra, p 373; People v Du Bray, 76 AD2d 976). (Appeal from judgment of Onondaga County Court, Cunningham, J. — assault, first degree.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Moule, JJ.