        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1138
KA 13-00536
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES W. FRYSINGER, DEFENDANT-APPELLANT.


JAMES A. BAKER, ITHACA, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JAMES P. MILLER OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Peter C.
Bradstreet, J.), rendered October 19, 2012. The judgment convicted
defendant, upon his plea of guilty, of unlawfully dealing with a child
in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of unlawfully dealing with a child in the
first degree (Penal Law § 260.20 [2]). We note at the outset that
defendant’s waiver of the right to appeal is invalid. Despite the
existence of a written appeal waiver form signed by defendant and his
attorney, no questions were asked of defendant about the appeal waiver
and his understanding thereof. In addition, the appeal waiver was not
mentioned until after defendant pleaded guilty. Thus, the record is
“insufficient to establish that [County Court] ‘engage[d] the
defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice’ ” (People v Brown,
296 AD2d 860, 860, lv denied 98 NY2d 767; see People v Hamilton, 49
AD3d 1163, 1164).

     We agree with defendant that the court erred in denying his
motion to vacate his guilty plea, which, inter alia, challenged the
factual sufficiency of his plea allocution (see People v Lopez, 71
NY2d 662, 665). Defendant was expressly charged with the act of
providing alcoholic beverages to persons under 21 years of age, but
during the brief factual colloquy at the plea proceeding he never
admitted that he provided alcohol. Here, defendant “preserve[d his]
challenge to the factual sufficiency of [the] plea allocution . . .
[by making] a motion to withdraw the plea under CPL 220.60 (3)” (id.),
                                 -2-                          1138
                                                         KA 13-00536

and we conclude that the court erred in denying that motion.




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
