## Facts

- Donald Bovio was accused of causing the death of his three-year-old stepson.
- The incident occurred in the apartment where Bovio lived with the child and his wife (a codefendant).
- Bovio violently pushed the child, causing the child to strike his head on the floor, become nonresponsive, and later die days afterward.
- Bovio was charged in Seneca County Court with, among other offenses, second-degree murder under a depraved-indifference theory (Penal Law § 125.25[2]).
- Bovio pleaded guilty to depraved-indifference murder.
- During the plea allocution, Bovio admitted pushing the child and admitted awareness of a substantial risk of serious injury or death (recklessness).
- When the court asked whether he did not care if harm happened to the child or how the risk turned out, Bovio stated through counsel that he “did care for” the child.
- Bovio moved to withdraw his guilty plea, arguing that his allocution negated the depraved-indifference mens rea; County Court denied the motion and entered judgment.
- Bovio appealed from the judgment of conviction.

## Issues

1. Whether Bovio’s claim that the plea was not knowingly and voluntarily entered was reviewable despite any appeal waiver and preservation limits.
2. Whether the plea to depraved-indifference murder was invalid because the allocution negated the depraved-indifference mens rea and County Court failed to conduct an adequate further inquiry before accepting the plea and denying withdrawal.

## Decision

- The Appellate Division, Fourth Department unanimously reversed the judgment on the law, vacated the guilty plea, and remitted the matter to Seneca County Court for further proceedings on the indictment.
- The court held that Bovio’s contention that his plea was not knowingly and voluntarily entered survived even a valid appeal waiver.
- The court held that the claim was preserved by Bovio’s motion to withdraw the plea; in any event, the narrow exception to preservation applied because the allocution itself called the plea’s voluntariness into question.
- Bovio’s admissions were sufficient to establish recklessness, but his statement that he “did care” for the child negated depraved indifference, which requires that the defendant did not care whether the victim lived or died (i.e., did not care how the risk turned out).
- Because the allocution negated an element of the offense, County Court could not accept the plea without further inquiry to ensure Bovio understood the nature of the charge and that the plea was intelligently entered.
- County Court’s follow-up did not resolve the inconsistency; the plea therefore lacked an adequate factual basis for depraved indifference, and denial of the motion to withdraw was error.

## Legal Principles

- A challenge to whether a guilty plea was knowing, voluntary, and intelligent remains reviewable even when a defendant has executed an appeal waiver.
- A plea-validity claim is preserved by a motion to withdraw the plea; alternatively, a limited exception applies when the plea colloquy itself raises a clear question about an element or the voluntariness of the plea.
- Trial courts need not use a set script during an allocution, but when a defendant’s factual statements negate an element of the offense, the court must make further inquiry before accepting the plea.
- Depraved-indifference murder under Penal Law § 125.25(2) includes two mental-state components: (1) recklessness (awareness and conscious disregard of a substantial and unjustifiable risk), and (2) depraved indifference, meaning an “utter disregard for the value of human life,” commonly described as not caring whether the victim lived or died or how the risk turned out.
- Where an allocution supports recklessness but contradicts depraved indifference, the plea cannot stand unless the court’s additional questioning resolves the contradiction and establishes a sufficient factual basis for the heightened mens rea.

## Conclusion

The Fourth Department vacated Bovio’s guilty plea to depraved-indifference murder because, although he admitted reckless conduct in pushing the child, his allocution also stated that he cared for the victim—contradicting the required depraved-indifference mental state—and the trial court failed to conduct an adequate inquiry to reconcile that inconsistency before accepting the plea and denying withdrawal.


People v. Bovio, 206 A.D.3d 1568, 168 N.Y.S.3d 632 (2022)