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A Felony DWI May Not Serve as a Predicate Felony for Assault 2d

On December 8, 2005, in People v. Rucinski, the Fourth Department held that a felony DWI may not serve as the underlying felony for assault in the second degree, citing People v. Snow, 138 A.D.2d 217, 219 aff'd 74 N.Y.2d 671 (wherein the Court held that a DWI may not serve as the predicate felony for assault in the first degree).

The defendant didn't  preserve this issue for review, but the Court considered it on appeal anyway, since it "fell within the rare exception to the preservation argument set forth in People v. Lopez, 71 N.Y.2d 662, 666."  The Court apparently chose not to enlighten the reader any further as to the mysterious exception set forth in People v. Lopez.  I, however, choose not to be so elusive, and am more than willing to fill in the blank:  the preservation rule does not apply if a portion of the defendant's factual allocution negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of his plea.   See, for eg., People v. Sandher .

Accordingly, the Fourth Department reversed that part of the judgment that convicted the defendant of assault in the second degree and dismissed that count of the indictment.

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