NY appeals court reverses assault, gun plea over flawed colloquy

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In a split decision, a state appeals court has reversed assault and gun convictions because of a dubious plea colloquy.

Defendant Salina Brown-Shook pleaded guilty in January 2023 before Rensselaer County Judge Debra Young to second-degree assault, and third-degree criminal possession of a weapon.

She was accused of stabbing a former romantic partner.

Subsequently, the victim of that altercation was murdered, and Brown-Shook’s then-romantic partner was the perpetrator.

The prosecution was “open to a wide array of discussions” to resolve (Brown-Shook’s) case if she cooperated in the homicide prosecution, according to a recent decision by the Appellate Division of state Supreme Court, Third Department.

Brown-Shook pleaded guilty in February 2022 and waived her right to appeal.

There was no formal plea agreement, but there was an understanding that the judge would set a “reasonable” bail and give Brown-Shook the opportunity to “get her affairs in order,” and apply for alternative sentencing under the Domestic Violence Survivors Justice Act, according to the decision.

Bail was set and, following a hearing, her application for alternative sentencing was granted.

In January 2023, Brown-Shook was sentenced to two years in prison, followed by three years of post-release supervision. She has served the prison sentence and was released to parole supervision in June 2024.

Brown-Shook appealed to the Appellate Division of state Supreme Court, Third Department, which reversed the convictions in a 3-2 vote.

Although she waived her right to appeal, the majority ruled that Brown-Shook may have negated elements of the crime to which she was pleading, or made statements suggesting the plea was involuntary, which would oblige the judge to conduct an inquiry or give her an opportunity to withdraw the plea.

Brown-Shook testified at the post-plea hearing on her application for alternative sentencing that the victim was the aggressor in the altercation that led to the charges against her.

She said the victim became enraged when she took some of his marijuana and punched her so hard that she fell to the floor. She said the victim choked her while she was on the floor and destroyed her cell phone by throwing it against the wall before she was able to get the victim off her and attempt to flee.

Only when the victim pursued her and pulled her back into the residence by her hair, did she grab a kitchen knife lying in the open and stabbed him.

Brown-Shook said she had grabbed the knife in “self-defense” and did not want to hurt him. She said her goal was to get out of the house without further injuries.

That testimony suggested that Brown-Shook lacked the intent to cause serious physical injury, which is required to commit second-degree assault, or to use the knife unlawfully against the victim, as required to commit third-degree criminal possession of a weapon, the majority wrote.

“It further suggested a plausible justification defense to the assault charge that was not specifically discussed during the plea colloquy,” according to the decision.

The majority ruled that the judge “was obliged to make further inquiry about that plea or give defendant the opportunity to withdraw it.”

“The court failed to do either. Thus, we reverse the judgment and remit for further proceedings,” the majority wrote.

Justices Christine M. Clark and Elizabeth A. Garry dissented.

“Defendant’s challenge to the validity of the plea is unpreserved for appellate review and the narrow exception to the preservation rule was not triggered in this case. In our view, there is no valid basis to vacate defendant’s plea,” they wrote.

“At no point during the 11-month period between the entry of the plea and the imposition of sentence did defendant move to withdraw her plea or otherwise object to its entry,” Clark and Garry wrote.

“Under these particular circumstances, and when considered in context, defendant’s post-plea statements did not raise a legitimate question about the voluntariness of (her) plea so as to impose upon the court a duty of further inquiry to ensure that the plea was knowing, voluntary and intelligent,” they wrote.

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