Since No Hearing Was Held, Panel Vacates a Guilty Plea

, New York Law Journal

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A former state lawyer should get a hearing over whether to vacate his conviction for harassing his black neighbors, behavior that he said was precipitated by his use of anti-depressants, an upstate appellate court ruled.

A unanimous panel of the Appellate Division, Third Department, said in People v. Hennessey, 105342, that a hearing should have been conducted by Albany County Court Judge Stephen Herrick (See Profile) before he denied James Hennessey's CPL 440.10 motion to vacate his conviction on two counts of second-degree aggravated harassment.

Hennessey pleaded guilty to two counts of aggravated harassment as hate crimes in 2012. But he submitted evidence from a clinical psychologist who concluded that Hennessey was taking multiple medications for chronic anxiety syndrome, including Zocor, Xanax, Zoloft and Seroquel, at about the time he made the harassing phone calls to his black neighbors and also when he decided to plead guilty to two of the 11 charges (NYLJ, Feb. 24, 2011).

The psychologist concluded that Hennessey, a lawyer for the state Department of Civil Service, had symptoms consistent with a bipolar disorder. The harassing phone calls were "out of character" and occurred after Hennessey had led a "productive and law-abiding life."

Justice Elizabeth Garry (See Profile) wrote that a 440.10 motion is the "appropriate vehicle" to collect more information about Hennessey's mental state and the extent, if any, that his use of psychotropic medications impaired his ability to enter a "knowing, voluntary and intelligent guilty plea." Justices Robert Rose (See Profile), John Lahtinen (See Profile) and John Egan Jr. (See Profile) concurred in the Nov. 27 ruling.

Gary Greenwald of Chester represented Hennessey, who received concurrent one- to three-year sentences on each count. Assistant Albany County District Attorney Christopher Torelli argued for the prosecution.

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