PEOPLE v. ROSARIO (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated and the matter is remitted to Niagara County Court for further proceedings on the indictment.

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of two 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 a statement during the allocution that cast significant doubt on his guilt or otherwise called into question the voluntariness of the plea and the court failed to conduct a sufficient inquiry 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 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Burtes, 151 A.D.3d 1806, 1807, 58 N.Y.S.3d 766 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017];  People v. Gibson, 140 A.D.3d 1786, 1787, 32 N.Y.S.3d 413 [4th Dept. 2016], lv denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016];  People v. Vandeviver, 56 A.D.3d 1118, 1118, 867 N.Y.S.2d 586 [4th Dept. 2008], lv denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009], reconsideration denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ).  This case nonetheless falls within the rare exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Dejesus, 144 A.D.3d 1564, 1565, 40 N.Y.S.3d 831 [4th Dept. 2016] ).  Defendant made a statement during the plea allocution that raised a potentially viable affirmative defense pursuant to Penal Law § 130.10(1), thereby “giving rise to a duty on the part of the court, before accepting the guilty plea, to ensure that defendant was aware of that defense and was knowingly and voluntarily waiving it” (Dejesus, 144 A.D.3d at 1565, 40 N.Y.S.3d 831;  see People v. Mox, 20 N.Y.3d 936, 938–939, 958 N.Y.S.2d 670, 982 N.E.2d 590 [2012];  People v. Dukes, 120 A.D.3d 1597, 1598, 993 N.Y.S.2d 411 [4th Dept. 2014] ).  We conclude that the court's inquiry here was insufficient to meet that obligation (see Mox, 20 N.Y.3d at 939, 958 N.Y.S.2d 670, 982 N.E.2d 590;  Dejesus, 144 A.D.3d at 1565, 40 N.Y.S.3d 831).  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.