| People v Schmitz |
| 2018 NY Slip Op 01960 [159 AD3d 1222] |
| March 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v KevinSchmitz, Appellant. |
Donna Maria Lasher, Youngsville, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered May 13, 2015, convicting defendant upon his plea of guilty of the crimes of aggravatedunlicensed operation of a motor vehicle in the first degree and driving while intoxicated.
In satisfaction of a six-count indictment, defendant pleaded guilty to aggravated unlicensedoperation of a motor vehicle in the first degree and driving while intoxicated. He also waived hisright to appeal. Under the terms of the plea agreement, he was to be sentenced to concurrent jailterms of one year. Instead, he was sentenced to six months in jail and five years of probation. Henow appeals.
Defendant contends that his guilty plea was not knowing, voluntary and intelligent becauseCounty Court failed to advise him of the rights that he was relinquishing by entering it. ThePeople concede this deficiency. Although the claim has not been preserved for our review giventhe absence of an appropriate postallocution motion by defendant, we nevertheless exercise ourinterest of justice jurisdiction and take corrective action under the particular circumstancespresented (see People v Aubain, 152AD3d 868, 869 [2017]; People vHerbert, 147 AD3d 1208, 1210 [2017]). "While there is no mandatory catechismrequired of a pleading defendant, there must be an affirmative showing on the record that thedefendant waived his or her constitutional rights" (People v Lowe, 133 AD3d 1099, 1100 [2015] [internal quotationmarks, brackets and citations omitted]; see People v Tyrell, 22 NY3d 359, 365 [2013]). Here, the recordreveals the absence of a meaningful plea colloquy and that defendant entered his guilty pleawithout County Court providing any instruction on its implications or the rights that he waswaiving by entering it (see People v Aubain, 152 AD3d at 870; People v Herbert,147 AD3d at 1210). Accordingly, [*2]the judgment must bereversed.
McCarthy, J.P., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isreversed, as a matter of discretion in the interest of justice, and matter remitted to the CountyCourt of Sullivan County for further proceedings not inconsistent with this Court's decision.