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Did his veteran status influence this decision?November 11, 2017

People v Rogers, 2017 NY Slip Op 07889 (3d Dept, 2017)

(1) Defendant, an army veteran, admitted to unlawfully entering a residence and taking a bottle of wine, claiming that he heard a voice telling him to do so. Following his arrest, he waived indictment and agreed to be prosecuted by a superior court information charging him with attempted burglary in the third degree. He pleaded guilty to this crime and waived his right to appeal, both orally and in writing. Under the terms of the plea agreement, he was to be sentenced to 1⅓ to 4 years in prison; however, if he successfully completed the alternative treatment

(2)  Significantly, defendant acknowledged during the plea colloquy that he had mental health problems, including posttraumatic stress disorder that caused him to experience hallucinations, that he heard a voice telling him to commit the crime at issue and that he was taking multiple medications, including Zoloft, to address his mental health problems. Although County Court observed that defendant appeared coherent and responsive during the plea proceedings, it did not ascertain if he was aware that a possible defense, emanating from his mental state at the time that he committed the crime, was available and that he was waiving it by pleading guilty. Inasmuch as an essential element of attempted burglary in the third degree is the intent to commit a crime inside a building that one has unlawfully entered (see Penal Law § 140.20), and defendant’s mental state potentially negated such intent, County Court should have conducted a further inquiry before accepting defendant’s guilty plea (see People v Mox, 20 NY3d 936, 938-939 [2012]; People v Green, 141 AD3d at 838-839; People v Wolcott, 27 AD3d 774, 775-776 [2006]). Accordingly, under the circumstances presented, we find that the guilty plea was not knowing, voluntary and intelligent and must be vacated. In view of our disposition, we need not address defendant’s remaining claim.

** I post this because judges are humans and sometimes they make blatant value judgments.  Take away the veteran status, and the felon conviction is affirmed.  I am not saying this is wrong, but it does not get more blatant than this.  I would have voted with the majority, if that means anything.

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