| People v Rosario |
| 2018 NY Slip Op 07564 [166 AD3d 1498] |
| November 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jose Rosario, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Laura Jordan of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered April 27, 2015. The judgment convicted defendant, upon his plea of guilty, ofsexual abuse in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated and the matter is remitted to Niagara County Court for furtherproceedings on the indictment.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty oftwo counts of sexual abuse in the first degree (Penal Law § 130.65 [2]),defendant contends that County Court erred in accepting the plea because he made astatement during the allocution that cast significant doubt on his guilt or otherwise calledinto question the voluntariness of the plea and the court failed to conduct a sufficientinquiry to ensure that the plea was knowingly and voluntarily entered. We agree.Although defendant's contention survives his valid waiver of the right to appeal (see generally People v Lopez,6 NY3d 248, 255 [2006]), he failed to preserve that contention for our reviewinasmuch as he did not move to withdraw the plea or to vacate the judgment ofconviction on that ground (seePeople v Burtes, 151 AD3d 1806, 1807 [4th Dept 2017], lv denied 30NY3d 978 [2017]; People vGibson, 140 AD3d 1786, 1787 [4th Dept 2016], lv denied 28 NY3d1072 [2016]; People vVanDeViver, 56 AD3d 1118, 1118 [4th Dept 2008], lv denied 11 NY3d931 [2009], denied reconsideration 12 NY3d 788 [2009]). This case nonethelessfalls within the rare exception to the preservation requirement (see People vLopez, 71 NY2d 662, 666 [1988]; People v DeJesus, 144 AD3d 1564, 1565 [4th Dept 2016]).Defendant made a statement during the plea allocution that raised a potentially viableaffirmative defense pursuant to Penal Law § 130.10 (1), thereby "givingrise to a duty on the part of the court, before accepting the guilty plea, to ensure thatdefendant was aware of that defense and was knowingly and voluntarily waiving it"(DeJesus, 144 AD3d at 1565; see People v Mox, 20 NY3d 936, 938-939 [2012]; People v Dukes, 120 AD3d1597, 1598 [4th Dept 2014]). We conclude that the court's inquiry here wasinsufficient to meet that obligation (see Mox, 20 NY3d at 939; DeJesus,144 AD3d at 1565). We therefore reverse the judgment of conviction, vacate the plea,and remit the matter to County Court for further proceedings on the indictment.
In light of our determination, we do not address defendant's remaining contentions.Present—Peradotto, J.P., Carni, Lindley, Curran and Winslow, JJ.