State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 2, 2015 106217 

106539

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

DAVID R. LANG,

Appellant.

________________________________

Calendar Date: February 9, 2015

Before: Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.

__________

Tendy Law Office, LLC, New York City (Sheila Tendy of

counsel) and Dechert, LLP, New York City (James M. McGuire of

counsel), for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (James

E. Martineau Jr. of counsel), for respondent.

__________

Egan Jr., J.

Appeals (1) from a judgment of the County Court of Essex

County (Meyer, J.), rendered August 8, 2013, convicting defendant

upon his plea of guilty of the crime of manslaughter in the first

degree, and (2) by permission, from an order of said court,

entered March 6, 2014, which denied defendant's motion pursuant

to CPL 440.10 to vacate the judgment of conviction, without a

hearing.

Defendant was indicted and charged with murder in the

second degree and criminal possession of a weapon in the fourth

degree following a June 19, 2012 incident at a farm in the Town
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of Crown Point, Essex County wherein defendant, then 70 years

old, fatally shot his brother in the head with a rifle. 

Following the incident, defendant called 911, reported the

shooting and openly admitted to the 911 dispatcher that he was

the perpetrator. When the dispatcher inquired as to whether

defendant had been drinking, defendant replied, "Of course I've

been drinking. . . . I drink every God damn day!" Defendant was

taken into custody by state troopers responding to the 911 call

and, later that same day, was arraigned in Crown Point Town

Court, at which time the Town Judge indicated that he would "rearraign" defendant the following day due to defendant's apparent

level of intoxication.

Following indictment by an Essex County grand jury, the

matter was scheduled for a trial to commence on July 8, 2013. In

May 2013, defendant and counsel were apprised of the possibility

that defendant's trial might be moved up to June 10, 2013 due to

the adjournment of another trial. In response, defense counsel

advised County Court of his intention to seek an adjournment

based upon, among other things, the unavailability of an expert

witness. When the parties appeared before County Court on June

5, 2013 for a conference, County Court indicated that it indeed

intended to move up defendant's trial to the following week. 

Defense counsel objected and requested an adjournment, again

citing the unavailability – due to this new trial date – of an

expert witness relative to defendant's intoxication defense. 

County Court thereafter engaged in an extended discussion with

defense counsel with respect to the asserted intoxication defense

– essentially taking the position that, unless counsel could

persuade the court that defendant had a viable defense in this

regard, no adjournment was warranted. In so doing, County Court

compelled defense counsel to lay bare his proof in this regard

and thereafter expressed serious misgivings as to the merits

and/or viability of the subject defense.

Following a brief off-the-record discussion, the conference

resumed, at which time County Court then inquired as to whether

the People had extended a plea offer. A discussion as to the

possible sentencing parameters ensued and, following another

break in the proceedings, defendant returned to the courtroom and
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pleaded guilty to manslaughter in the first degree in full

satisfaction of the indictment and waived his right to appeal. 

During the course of the plea colloquy, County Court recited the

elements of manslaughter in the first degree and asked defendant

whether it was true that, with intent to cause serious physical

injury, he caused the death of his brother, to which defendant

responded, "To the best of my recollection it is, sir." County

Court thereafter sentenced defendant to 15 years in prison

followed by five years of postrelease supervision. Defendant's

subsequent CPL article 440 motion to vacate the judgment of

conviction was denied, and he now appeals from the judgment of

conviction and, by permission, from the order denying his motion

to vacate.

Preliminarily, the claims raised by defendant in the

context of his CPL article 440 motion – namely, that his plea was

coerced and/or otherwise involuntary – are reviewable upon

defendant's direct appeal from the judgment of conviction and,

hence, are not the proper subject of such a motion (see People v

Hillriegel, 78 AD3d 1381, 1382 [2010]; People v Lagas, 49 AD3d

1025, 1026 [2008], lvs denied 10 NY3d 859, 866 [2008]). Turning

to the merits, defendant'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 (see People v Jackson, 119 AD3d 1288, 1288

[2014]). 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 (compare People v Duggins, 114 AD3d

1001, 1002 [2014], lvs denied 23 NY3d 961, 962 [2014]; People v

Morgan, 84 AD3d 1594, 1594 [2011], lv denied 17 NY3d 819 [2011];

People v Beach, 306 AD2d 753, 754 [2003]) – 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
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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.1 Under these circumstances, we are unable

to conclude that defendant's guilty plea was knowing, intelligent

and voluntary. Accordingly, the judgment of conviction is

reversed and defendant's plea is vacated.

Lahtinen, J.P., McCarthy and Clark, JJ., concur.

ORDERED that the judgment is reversed, on the law, plea

vacated and matter remitted to the County Court of Essex County

for further proceedings not inconsistent with this Court's

decision.

ORDERED that the order is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 County Court admittedly did not deny defendant's request

for an adjournment, but the court nonetheless made clear that it

would grant such a request only if defendant could demonstrate

that he had a viable intoxication defense. Absent a viable

defense, County Court reasoned, there was no need for an expert

witness and, hence, no need for an adjournment.