| People v Busch-Scardino |
| 2018 NY Slip Op 01218 [158 AD3d 988] |
| February 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v NancyBusch-Scardino, Appellant. |
Brian M. Callahan, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Schenectady County (Loyola, J.),rendered June 15, 2015, convicting defendant upon her plea of guilty of the crime of criminalcontempt in the first degree.
In satisfaction of a superior court information charging her with several offenses, defendantpleaded guilty to criminal contempt in the first degree and executed a waiver of appeal.Thereafter, consistent with the terms of the plea agreement, County Court sentenced her, as asecond felony offender, to 1
Initially, defendant's claim that her plea was not knowing, intelligent and voluntary survivesher unchallenged appeal waiver but is unpreserved for our review as the record does not reflectthat she made an appropriate postallocution motion (see People v Rayburn, 150 AD3d 1553, 1554 [2017]; People v Bonds, 148 AD3d 1304,1305 [2017], lv denied 29 NY3d 1076 [2017]). However, we agree with defendant thatthe narrow exception to the preservation rule applies. "[W]here a pleading defendant's recitationof the facts of his or her offense clearly casts doubt on his or her guilt and the court makes nofurther inquiry, the defendant does not have to preserve a claim of fatal error in the allocutionbecause . . . 'the court's attention should have been instantly drawn to the problem,and the salutary purpose of the preservation rule is arguably not jeopardized' " (People v Williams, 27 NY3d 212,220 [2016], quoting People v Lopez, 71 NY2d 662, 666 [1988]). Here, defendant statedduring her plea allocution that she did not intend to violate the underlying order [*2]of protection, thus negating an element of criminal contempt in thefirst degree (see Penal Law § 215.51 [c]; People v Heiserman, 127 AD3d 1422, 1423 [2015]). AlthoughCounty Court promptly responded and afforded defendant an opportunity to again consult withher counsel, further discussion was then held off the record. Thus, we are unable to ascertainfrom the record whether the court conducted the requisite further inquiry to ensure that defendantunderstood the elements of the crime to which she was pleading guilty and that the plea wasknowing, voluntary and intelligent (seePeople v McMillan, 129 AD3d 1113, 1114 [2015]; People v Morehouse, 109 AD3d 1022, 1023 [2013]; People v Coleman, 104 AD3d1134, 1135 [2013]). Accordingly, as the doubt cast on defendant's plea was not removed, herplea must be vacated and the matter remitted to County Court (see People v Marrero, 130 AD3d1148, 1149 [2015]; People v Morehouse, 109 AD3d at 1023; People v Roy, 77 AD3d 1310,1310-1311 [2010]; People v Ocasio, 265 AD2d 675, 677-678 [1999]).
McCarthy, Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Schenectady County for furtherproceedings not inconsistent with this Court's decision.