| People v Fuentes |
| 2015 NY Slip Op 00389 [124 AD3d 677] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Fuentes, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Toomey, J.), rendered October 17, 2012, convicting him of criminal possession of aweapon in the third degree (two counts) and criminal possession of a weapon in thefourth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the defendant's plea of guilty isvacated, and the matter is remitted to the County Court, Suffolk County, for furtherproceedings on the indictment.
The defendant was charged with two counts of criminal possession of a weapon inthe third degree and one count of criminal possession of a weapon in the fourth degree.During the plea allocution, the defendant stated that the weapon "wasn't mine," and thathe "touched it in defense, self-defense." Thereafter, the County Court proceeded toaccept the defendant's plea of guilty to the charged crimes without any inquiry regardinghis statements.
To be valid, a plea of guilty must be entered knowingly, voluntarily, and intelligently(see People v Mox, 20NY3d 936, 938 [2012]; People v Hill, 9 NY3d 189, 191 [2007]; People v Jimenez, 110 AD3d740, 741 [2013]; People vGrason, 107 AD3d 1015 [2013]). A defendant cannot waive, and always retains,the right to challenge the voluntariness of a guilty plea (see People v Seaberg, 74NY2d 1, 10 [1989]). Here, the defendant did not preserve for appellate review hiscontention that his plea was not knowing and voluntary by moving to withdraw his pleaof guilty. However, on this record, the exception to the preservation rule applies, sincethe defendant's recitation of the facts underlying his plea to the charged crimes clearlycasts significant doubt upon his guilt, negates an essential element of the crimes, orotherwise calls into question the voluntariness of his plea (see People v Lopez, 71NY2d 662, 666 [1988]; see People v Mox, 20 NY3d at 938). The defendant'sstatements during the plea allocution triggered the County Court's duty to inquire as to apotential defense of temporary lawful possession of a weapon (see People vBanks, 76 NY2d 799 [1990]; People v Snyder, 73 NY2d 900, 901 [1989];People v Williams, 50 NY2d 1043, 1045 [1980]). Since the County Court failedto make any inquiry at all, the defendant's plea of guilty must be vacated (see Peoplev Mox, 20 NY3d at 939; People v Perez, [*2]121 AD3d 1015 [2014]; People v Jimenez, 110AD3d at 741; People v Grason, 107 AD3d at 1016).
The defendant's remaining contention need not be reached in light of ourdetermination. Skelos, J.P., Leventhal, Hinds-Radix, Duffy and LaSalle, JJ., concur.