PEOPLE v. POWELL II (2000)

 We agree with defendant that his plea of guilty to attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4] ) must be vacated because it was not knowingly, voluntarily and intelligently entered.   Although defendant's waiver of the right to appeal was knowingly, voluntarily and intelligently entered, defendant's present contention survives that waiver (see, People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   Further, although defendant failed to move to withdraw his plea or to vacate the judgment of conviction, this case presents one of those rare instances in which preservation is not required (see, People v. Lopez, 71 N.Y.2d 662, 665-666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   During the plea colloquy, defendant stated that he and his accomplices used a fake gun during the robbery.   It is an affirmative defense to attempted robbery in the first degree that the weapon “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (Penal Law § 160.15[4] ).   Defendant's factual recitation raised a possible defense, and County Court failed to conduct the requisite further inquiry to determine whether defendant was aware of the defense and was knowingly and voluntarily waiving that defense (see, People v. Costanza, 244 A.D.2d 988, 989, 665 N.Y.S.2d 487;  see also, People v. Wasson, 266 A.D.2d 701, 701 N.Y.S.2d 118;  People v. Espinoza, 253 A.D.2d 983, 680 N.Y.S.2d 122;  see generally, People v. Lopez, supra, at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

Judgment unanimously reversed on the law, plea vacated and matter remitted to Monroe County Court for further proceedings on the superior court information.

MEMORANDUM: