| People v Roy |
| 2010 NY Slip Op 06859 [77 AD3d 1310] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Donna L. Roy,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered April 4,2008. The judgment convicted defendant, upon her plea of guilty, of attempted grand larceny in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, theplea is vacated and the matter is remitted to Oneida County Court for further proceedings on theindictment.
Memorandum: Defendant appeals from a judgment convicting her upon a plea of guilty ofattempted grand larceny in the third degree (Penal Law §§ 110.00, 155.35). Although thecontention of defendant that her plea was not voluntarily, knowingly and intelligently entered survivesher valid waiver of the right to appeal, defendant failed to move to withdraw her guilty plea or to vacatethe judgment of conviction and thus failed to preserve that contention for our review (see People v Zulian, 68 AD3d 1731[2009]). We agree with defendant, however, that this is one of those rare cases where preservation isnot required because "the defendant's recitation of the facts underlying the crime pleaded to clearlycasts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of theplea" (People v Lopez, 71 NY2d 662, 666 [1988]). Thus, County Court had a "duty to inquirefurther to ensure that defendant's guilty plea [was] knowing and voluntary" (id.).
We conclude that the court failed to make the requisite inquiry to ensure that defendant's plea wasvoluntarily entered. "[A]t a minimum the record of the . . . plea proceedings must reflect. . . that defendant's responses to the court's subsequent questions removed the doubtabout defendant's guilt" (People v Ocasio, 265 AD2d 675, 678 [1999]). "Although [the court]made some further inquiries of defendant, none of them [was] even remotely sufficient to determine thatthe plea was entered intelligently and with knowledge of the nature of the charge and with the requisitecriminal intent" (id. at 677; seePeople v Speed, 13 AD3d 1083, 1084 [2004], lv denied 5 NY3d 795 [2005]).
Based on our decision, we see no need to address defendant's remaining contentions.Present—Smith, J.P., Fahey, Sconiers, Pine and Gorski, JJ.