| People v Peterson |
| 2015 NY Slip Op 00406 [124 AD3d 993] |
| January 15, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEmmanuel W. Peterson, Appellant. |
Torrance L. Schmitz, Vestal, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered July 11, 2013, convicting defendant upon his plea of guilty of the crime ofrobbery in the first degree (two counts).
Pursuant to an agreement, defendant pleaded guilty to two counts of robbery in thefirst degree stemming from two armed robberies of convenience stores in December2012. He was sentenced to an aggregate prison term of 10 years, to be followed by fiveyears of postrelease supervision, and now appeals.
During the plea colloquy with regard to count one, defendant denied that the pistolhe displayed was loaded, raising an affirmative defense to that charge (see PenalLaw § 160.15 [4]). As the People concede, County Court erred in acceptingthis guilty plea without making further inquiry to ascertain whether he was aware of thispotential defense and was waiving it voluntarily, intelligently and knowingly (see People v McEaddy, 20AD3d 585, 585-586 [2005]; see also People v Wolcott, 27 AD3d 774, 775 [2006];People v La Voie, 304 AD2d 857, 857-858 [2003]). Although defendant did notpreserve this challenge by moving to withdraw his plea, the narrow exception to thepreservation requirement is applicable as his denial that the gun was loaded cast doubt onhis guilt of the crime charged, triggering a duty on the court "to inquire further to ensurethat [his] guilty plea is knowing and voluntary" (People v Lopez, 71 NY2d 662,666 [1988]; see People vTyrell, 22 NY3d 359, 363-364 [2013]). Because this was an integrated pleaagreement, the convictions on both charges must be reversed (see People vCarroll, 61 [*2]AD3d 1273, 1274 [2009]; People v Ortega, 53 AD3d696, 697 [2008]; People v Wolcott, 27 AD3d at 775-776).
Lahtinen, J.P., McCarthy, Rose and Lynch, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated and matter remitted to the County Court of BroomeCounty for further proceedings not inconsistent with this Court's decision.