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

1076
KA 13-00991
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHNNY BOYDE, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered February 15, 2011. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse in the first
degree, sexual abuse in the second degree and endangering the welfare
of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law, the plea is vacated, and the matter is
remitted to Onondaga County Court for further proceedings on the
indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of sexual abuse in the first degree (Penal Law
§ 130.65 [2]), sexual abuse in the second degree (§ 130.60 [2]), and
endangering the welfare of a child (§ 260.10 [1]). Defendant contends
that his plea should be vacated on the ground that it was coerced by
County Court’s statement that it would impose the maximum permissible
sentence of imprisonment in the event defendant was convicted
following a trial. As the People correctly concede, defendant’s
contention “ ‘survives [a] valid waiver of the right to appeal’ ”
(People v Zimmerman, 100 AD3d 1360, 1362, lv denied 20 NY3d 1015; see
People v Sparcino, 78 AD3d 1508, 1509, lv denied 16 NY3d 746).
Although “[d]efendant failed to move to withdraw his plea or to vacate
the judgment of conviction and thus failed to preserve for our review
his contention that his plea was coerced” (People v Lando, 61 AD3d
1389, 1389, lv denied 13 NY3d 746; see People v Boyd, 101 AD3d 1683,
1683), we exercise our power to review his contention as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]). We
agree with defendant that “the court’s statement[] do[es] not amount
to a description of the range of the potential sentences but,
rather,[it] constitutes impermissible coercion, ‘rendering the plea
                                 -2-                          1076
                                                         KA 13-00991

involuntary and requiring its vacatur’ ” (People v Flinn, 60 AD3d
1304, 1305; see People v Kelley, 114 AD3d 1229, 1230).




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
