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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Charles E. DALTON, Appellant.

Decided: January 28, 2010

Before:  PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ. Eugene P. Grimmick, Troy, for appellant. Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), for respondent.

Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered September 4, 2008, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fifth degree.

Defendant was charged in a two-count indictment with criminal sale of a controlled substance in the third degree and criminal impersonation in the second degree.   Pursuant to a negotiated plea agreement, which was conditioned upon defendant's right to pursue appellate review of his statutory speedy trial claim, defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree, was sentenced as a second felony offender to a prison term of two years followed by 1 1/212 years of postrelease supervision and executed a written waiver of appeal.

 By pleading guilty, defendant forfeited his right to appellate review of his claim that his statutory right to a speedy trial (see CPL 30.30) was violated (see People v. Di Donato, 87 N.Y.2d 992, 993, 642 N.Y.S.2d 616, 665 N.E.2d 186 [1996];  People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982] ).   However, at the time of the plea allocution, County Court not only failed to advise defendant of this direct consequence of his plea, it specifically advised defendant that “you still retain your right to appeal the 30.30 decision.”   Consequently, we agree with defendant that his plea of guilty was not knowing, intelligent and voluntary.   To the extent that defendant failed to properly preserve this issue, we exercise our interest of justice jurisdiction to reverse and vacate the plea (see People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152 [2007], cert. denied --- U.S. ----, 128 S.Ct. 2430, 171 L.Ed.2d 257 [2008];  People v. Morbillo, 56 A.D.3d 694, 694-695, 871 N.Y.S.2d 151 [2008], lv. denied 12 N.Y.3d 786, 879 N.Y.S.2d 62, 906 N.E.2d 1096 [2009];  cf. People v. Jackson, 64 A.D.3d 1248, 1249-1250, 883 N.Y.S.2d 684 [2009], lv. denied 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017 [2009] ).

In light of the above, defendant's remaining contention is academic.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, plea vacated and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent with this Court's decision.



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