| People v Boyde |
| 2014 NY Slip Op 07826 [122 AD3d 1302] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJohnny Boyde, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered February 15, 2011. The judgment convicted defendant, upon his plea of guilty,of sexual abuse in the first degree, sexual abuse in the second degree and endangeringthe welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously reversed as amatter of discretion in the interest of justice and on the law, the plea is vacated, and thematter is remitted to Onondaga County Court for further proceedings on theindictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of sexual abuse in the first degree (Penal Law § 130.65 [2]), sexualabuse in the second degree (§ 130.60 [2]), and endangering the welfare of achild (§ 260.10 [1]). Defendant contends that his plea should be vacated onthe ground that it was coerced by County Court's statement that it would impose themaximum permissible sentence of imprisonment in the event defendant was convictedfollowing a trial. As the People correctly concede, defendant's contention" 'survives [a] valid waiver of the right to appeal' " (People v Zimmerman, 100AD3d 1360, 1362 [2012], lv denied 20 NY3d 1015 [2013]; see People v Sparcino, 78AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). Although"[d]efendant failed to move to withdraw his plea or to vacate the judgment of convictionand thus failed to preserve for our review his contention that his plea was coerced" (People v Lando, 61 AD3d1389, 1389 [2009], lv denied 13 NY3d 746 [2009]; see People v Boyd, 101 AD3d1683, 1683 [2012]), we exercise our power to review his contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [3] [c]). We agree withdefendant that "the court's statement[ ] do[es] not amount to a description of the range ofthe potential sentences but, rather, [it] constitutes impermissible coercion, 'rendering theplea involuntary and requiring its vacatur' " (People v Flinn, 60 AD3d 1304, 1305 [2009]; see People v Kelley, 114 AD3d1229, 1230 [2014]). Present—Smith, J.P., Peradotto, Carni, Valentino andWhalen, JJ.