People v. Fuentes

72 A.D.2d 550, 420 N.Y.S.2d 720, 1979 N.Y. App. Div. LEXIS 13614

Opinion

Appeal by defendant from a judgment of Supreme Court, Kings County, rendered July 25, 1978, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence. Judgment reversed, on the law, guilty plea vacated, and matter remanded to Criminal Term, for proceedings consistent herewith. The defendant was indicted for murder in the second degree (felony murder), burglary in the second degree, and criminal possession of a weapon in the second degree. The defendant offered to plead guilty to murder in the second degree in full satisfaction of the indictment. At the allocution, the defendant stated that he "went on a burglary with others”. He further stated that "One had a gun which I had no knowledge of’ and that while he was upstairs he heard gun shots, came downstairs and saw "the lady bleeding”. The court accepted the plea upon that statement. Without more, the defendant’s statement established nothing but a burglary and did not establish his guilt of the crime of murder in the second degree (felony murder) (see Penal Law, § 125.25, subd 3, pars [a], [b], [c]; People v Serrano, 15 NY2d 304, 308-310; People v Lynn, 28 NY2d 196). Consequently, the judgment must be reversed, the defendant’s guilty plea vacated, and the matter remanded to Criminal Term for further proceedings. Hopkins, J. P., Titone, Mangano and Gulotta, JJ., concur.