| People v Frysinger |
| 2013 NY Slip Op 07607 [111 AD3d 1397] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Charles W. Frysinger, Appellant. |
—[*1] Brooks T. Baker, District Attorney, Bath (James P. Miller of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.),rendered October 19, 2012. The judgment convicted defendant, upon his plea of guilty,of unlawfully dealing with a child in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea and the waiver of indictment are vacated, and the matter is remitted toSteuben County Court for further proceedings.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of unlawfully dealing with a child in the first degree (Penal Law § 260.20[2]). We note at the outset that defendant's waiver of the right to appeal is invalid.Despite the existence of a written appeal waiver form signed by defendant and hisattorney, no questions were asked of defendant about the appeal waiver and hisunderstanding thereof. In addition, the appeal waiver was not mentioned until afterdefendant pleaded guilty. Thus, the record is "insufficient to establish that [CountyCourt] 'engage[d] the defendant in an adequate colloquy to ensure that the waiver of theright to appeal was a knowing and voluntary choice' " (People v Brown, 296AD2d 860, 860 [2002], lv denied 98 NY2d 767 [2002]; see People v Hamilton, 49AD3d 1163, 1164 [2008]).
We agree with defendant that the court erred in denying his motion to vacate hisguilty plea, which, inter alia, challenged the factual sufficiency of his plea allocution(see People v Lopez, 71 NY2d 662, 665 [1988]). Defendant was expresslycharged with the act of providing alcoholic beverages to persons under 21 years of age,but during the brief factual colloquy at the plea proceeding he never admitted that heprovided alcohol. Here, defendant "preserve[d his] challenge to the factual sufficiency of[the] plea allocution . . . [by making] a motion to withdraw the plea underCPL 220.60 (3)" (id.), and we conclude that the court erred in denying thatmotion. Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.