People v. Smallwood

162 A.D.2d 1004, 557 N.Y.S.2d 214, 1990 N.Y. App. Div. LEXIS 9770

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1990
• Status: Published

Opinions

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: There is no merit to defendant’s contention that, because he denied an intent to inflict serious physical injury during his plea allocution, the court erred by accepting his guilty plea to the charge of assault in the first degree. An intent to inflict serious physical injury was readily inferable from defendant’s admissions concerning the beating of his wife (see, People v McGowen, 42 NY2d 905, rearg denied 42 NY2d 1015; People v Lopez, 127 AD2d 234, affd 71 NY2d 662). Although defendant stated that his wife struck him first, he admitted that he took the ashtray from her and struck her at least three times, causing severe injuries. Defendant’s recitation of the events negates a defense of justification or intoxication, and the court was not obliged to expand upon the inquiry conducted by the prosecutor (see, People v Smith, 148 AD2d 980, Iv denied 74 NY2d 747; People v Bruno, 147 AD2d 490).

The People concede that the count alleging assault in the second degree was an inclusory concurrent count and that defendant’s conviction for that charge should be reversed (see, CPL 300.40 [3] [b]; People v Allen, 147 AD2d 352, Iv denied 73 NY2d 1010). Accordingly, we modify the judgment to reverse that conviction and to dismiss the second count of the indictment.

All concur, except Doerr, J. P., and Denman, J., who dissent and vote to reverse the judgment, vacate the plea and reinstate the indictment, in the following memorandum.