| People v Williams |
| 2014 NY Slip Op 09067 [123 AD3d 1376] |
| December 31, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJeffrey G. Williams, Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schoharie County(Bartlett III, J.), rendered October 24, 2012, convicting defendant upon his plea of guiltyof the crimes of burglary in the third degree.
In February 2012, defendant was charged in an indictment with two counts each ofburglary in the third degree and grand larceny in the fourth degree after he broke into twobuildings and stole approximately $6,000 worth of cigarettes. County Court denied hismotion to dismiss the indictment on statutory speedy trial grounds, concluding thatexceptional circumstances—namely, conditions in local public buildings causedby flooding due to a hurricane—prevented convening a grand jury in a timelymanner despite diligent efforts (see CPL 30.30 [1] [a]; [4] [g]). Defendant thenpleaded guilty to burglary in the third degree. The People concede that an essential termof the plea bargain was the parties' understanding that defendant would retain the right toappeal the denial of his motion to dismiss on speedy trial grounds. Defendant wasthereafter sentenced, in accordance with the plea agreement and as a second felonyoffender, to a prison term of 2 to 4 years, and restitution in the amount of approximately$8,500 was imposed. Defendant now appeals, arguing that his plea was involuntarilyentered because his counsel and County Court erroneously informed him that a statutoryCPL 30.30 claim would survive a plea of guilty.
Initially, we consider whether defendant was required to preserve this claim by [*2]appropriate postallocution motion (see CPL 220.60[3]; 440.10). While a challenge to the validity of a guilty plea is generally not preservedfor appellate review unless it was first raised in the trial court (see People vLopez, 71 NY2d 662, 665 [1988]), the Court of Appeals has recognized that "wherea defendant has no practical ability to object to an error in a plea allocution which is clearfrom the face of the record, preservation is not required" (People v Peque, 22 NY3d168, 182 [2013], cert denied sub nom. Thomas v New York, 574 US&mdash, 135 S Ct 90 [2014]; accord People v Tyrell, 22 NY3d 359, 364 [2013]). Here aCPL 440.10 motion was unavailable because the error is clear from the face of therecord; similarly a CPL 220.60 (3) motion was practically unavailable because" 'defendant [could] hardly be expected to move to withdraw his plea on aground of which he ha[d] no knowledge' " (People v Peque, 22 NY3d at182, quoting People vLouree, 8 NY3d 541, 546 [2007]). Inasmuch as defendant—due to theinaccurate advice of his counsel and the trial court—did not know during the pleaand sentencing proceedings that his statutory speedy trial claim would be forfeited as adirect consequence of his plea (see e.g. People v Lydecker, 116 AD3d 1160, 1161 [2014],lv denied 24 NY3d 962 [2014]; People v Devino, 110 AD3d 1146, 1147 [2013]; Peoplev Benjamin, 296 AD2d 666, 667 [2002]), preservation was not required (seePeople v Peque, 22 NY3d at 183). Moreover, under these circumstances, we agreewith defendant that his guilty plea was not knowing, intelligent and voluntary and,accordingly, we reverse and vacate the plea (see People v Dalton, 69 AD3d 1235, 1235-1236[2010]).
Peters, P.J., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated and matter remitted to the County Court of SchoharieCounty for further proceedings not inconsistent with this Court's decision.