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

1417
KA 14-00475
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH HARRIS, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered February 27, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a weapon in the third degree and attempted promoting prison
contraband in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating that part of the plea of
guilty to attempted promoting prison contraband in the first degree
and as modified the judgment is affirmed and the matter is remitted to
Livingston County Court for further proceedings in accordance with the
following memorandum: Defendant appeals from a judgment convicting
him upon his plea of guilty of attempted criminal possession of a
weapon in the third degree (Penal Law §§ 110.00, 265.02 [1]), and
attempted promoting prison contraband in the first degree (§§ 110.00,
205.25 [2]). Defendant was charged in an eight-count indictment with
a series of charges, and he pleaded guilty to those two crimes as
lesser included offenses of the crimes charged in the third and eighth
counts of the indictment, respectively.

     Defendant failed to preserve for our review his contention that
his guilty plea was not entered knowingly, voluntarily and
intelligently (see People v Darling, 125 AD3d 1279, 1279, lv denied 25
NY3d 1071), and we conclude that, to the extent he pleaded guilty to
attempted criminal possession of a weapon, that part of his plea does
not fall within the narrow exception to the preservation requirement
such that County Court had a duty to inquire further into the
voluntariness of the plea with respect to that crime (see People v
Lopez, 71 NY2d 662, 666; Darling, 125 AD3d at 1279). We agree with
defendant, however, that the plea of guilty falls within that
exception to the extent defendant pleaded guilty to attempted
promoting prison contraband. Although “no factual colloquy was
required inasmuch as defendant pleaded guilty to a lesser included
                                 -2-                          1417
                                                         KA 14-00475

offense” (People v Thelbert, 17 AD3d 1049, 1049), here, defendant
expressly stated during the colloquy that he did not knowingly possess
contraband, did not attempt to introduce any contraband into the jail,
and did not intend to do so. This negated an element of the crime of
attempted promoting prison contraband in the first degree, which
requires, inter alia, that he “knowingly and unlawfully makes, obtains
or possesses any dangerous contraband” (Penal Law § 205.25 [2]).
Thus, defendant’s denials created “that rare case . . . where the
defendant’s recitation of the facts underlying the crime pleaded to
clearly casts significant doubt upon the defendant’s guilt or
otherwise calls into question the voluntariness of the plea[.
Consequently,] the trial court [had] a duty to inquire further to
ensure that defendant’s guilty plea [was] knowing and voluntary”
(Lopez, 71 NY2d at 666). The court having failed to do so, we vacate
that part of the plea of guilty to attempted promoting prison
contraband and remit the matter to County Court for further
proceedings on count eight of the indictment.

     We note, however, that the People have been deprived of the
benefit of their bargain. Thus, upon remittal, “the court should
entertain a motion by the People, should the People be so disposed, to
vacate the plea . . . in its entirety” (People v Irwin, 166 AD2d 924,
925; see People v Speed, 13 AD3d 1083, 1084, lv denied 5 NY3d 795; see
generally People v Farrar, 52 NY2d 302, 307-308).




Entered: December 31, 2015                      Frances E. Cafarell
                                                Clerk of the Court
