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

917
KA 14-01709
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MARVIN DEJESUS, DEFENDANT-APPELLANT.


DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered March 3, 2014. The judgment convicted defendant,
upon his plea of guilty, of attempted robbery in the first degree.

     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 Oneida County Court for further proceedings on the
indictment.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of attempted robbery in the first degree (Penal Law
§§ 110.00, 160.15 [4]), defendant contends that County Court erred in
accepting his plea of guilty without further inquiry into whether
defendant was aware of and was waiving any affirmative defense that
the gun displayed by his codefendant was unloaded. We conclude that
defendant’s contention, which goes to whether the plea of guilty was
voluntarily, knowingly, and intelligently entered, survives his
purported waiver of the right to appeal (see People v Bizardi, 130
AD3d 1492, 1492, lv denied 27 NY3d 992). Further, although defendant
failed to move to withdraw his plea or to vacate the judgment of
conviction and thus failed to preserve his contention for our review
(see People v Lopez, 71 NY2d 662, 665), we conclude that this case
falls within the rare exception to the preservation requirement (see
id. at 666; People v Dukes, 120 AD3d 1597, 1597-1598). The
codefendant’s allocution, which in this case was intertwined with that
of defendant, raised a potentially viable affirmative defense to the
charge, 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 (see People v
Powell, 278 AD2d 848, 848-849; see generally People v Mox, 20 NY3d
936, 938-939). Consequently, we conclude that the court erred in
accepting the plea without ensuring that defendant was making an
informed decision to waive the potential affirmative defense to the
                                 -2-                           917
                                                         KA 14-01709

charge. We therefore reverse the judgment of conviction, vacate the
plea, and remit the matter to County Court for further proceedings on
the indictment (see Dukes, 120 AD3d at 1597-1598).




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
