| People v Dalton |
| 2010 NY Slip Op 00595 [69 AD3d 1235] |
| January 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Charles E.Dalton, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath,J.), rendered September 4, 2008, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the fifth degree.
Defendant was charged in a two-count indictment with criminal sale of a controlledsubstance in the third degree and criminal impersonation in the second degree. Pursuant to anegotiated plea agreement, which was conditioned upon defendant's right to pursue appellatereview of his statutory speedy trial claim, defendant pleaded guilty to criminal sale of acontrolled substance in the fifth degree, was sentenced as a second felony offender to a prisonterm of two years followed by 1½ years of postrelease supervision and executed a writtenwaiver of appeal.
By pleading guilty, defendant forfeited his right to appellate review of his claim that hisstatutory right to a speedy trial (see CPL 30.30) was violated (see People v DiDonato, 87 NY2d 992, 993 [1996]; People v O'Brien, 56 NY2d 1009, 1010 [1982]).However, at the time of the plea allocution, County Court not only failed to advise defendant ofthis direct consequence of his plea, it specifically advised defendant that "you still retain yourright to appeal the 30.30 decision." Consequently, we agree with defendant that his plea of guiltywas not knowing, intelligent and voluntary. To the extent that defendant failed to properlypreserve this issue, we exercise our interest of justice jurisdiction to reverse and vacate the plea(see People v Hill, 9 [*2]NY3d 189, 191 [2007], certdenied 553 US —, 128 S Ct 2430 [2008]; People v Morbillo, 56 AD3d 694, 694-695 [2008], lvdenied 12 NY3d 786 [2009]; cf.People v Jackson, 64 AD3d 1248, 1249-1250 [2009], lv denied 13 NY3d 745[2009]).
In light of the above, defendant's remaining contention is academic.
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the judgment is reversed,on the law and as a matter of discretion in the interest of justice, plea vacated and matter remittedto the County Court of Rensselaer County for further proceedings not inconsistent with thisCourt's decision.