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

595
KA 15-00788
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. BERTOLLINI, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


KARPINSKI, STAPLETON & TEHAN, P.C., AUBURN (ADAM H. VANBUSKIRK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered January 29, 2015. The judgment convicted
defendant, upon his plea of guilty, of reckless endangerment 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 Cayuga County Court for further proceedings on the
superior court information.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of failure to report a change
of address as a sex offender (Correction Law § 168-f [4]) and, in
appeal No. 2, he appeals from a judgment convicting him upon his plea
of guilty of reckless endangerment in the first degree (Penal Law
§ 120.25). We note at the outset that defendant does not raise any
contentions with respect to the judgment in appeal No. 1, and we
therefore dismiss the appeal therefrom (see People v Michael A.C.
[appeal No. 2], 128 AD3d 1359, 1360, lv denied 25 NY3d 1168).

     By failing to move to withdraw the plea or vacate the judgment of
conviction in appeal No. 2, defendant has failed to preserve for our
review his challenge to the factual sufficiency of the plea allocution
with respect to the charge of reckless endangerment in the first
degree (see People v Kozody, 74 AD3d 1907, 1908, lv denied 15 NY3d
806). We agree with defendant, however, that his recitation of the
facts underlying that charge cast significant doubt upon his guilt
insofar as it negated the element of depraved indifference, and thus
that his plea falls within the narrow exception to the preservation
requirement (see People v Lopez, 71 NY2d 662, 666-667; People v
Hinckley, 50 AD3d 1466, 1466, lv denied 10 NY3d 959). Although County
                                 -2-                           595
                                                         KA 15-00788

Court attempted to conduct a further inquiry before accepting
defendant’s guilty plea, that inquiry was insufficient to reestablish
the negated element, and the court therefore failed to ensure that the
plea was knowing and voluntary. We therefore reverse the judgment in
appeal No. 2, vacate the plea, and remit the matter to County Court
for further proceedings on the superior court information. Although
defendant does not challenge his plea with respect to the charge of
failure to report a change of address as a sex offender in appeal No.
1, because both charges were encompassed by a negotiated agreement, we
note that in the event that defendant does not enter a plea of guilty
to the charge of reckless endangerment in the first degree upon
remittal, the court “ ‘should entertain a motion by the People, should
the People be so disposed, to vacate the plea [in appeal No. 1] and
set aside th[at] conviction’ ” as well (Hinckley, 50 AD3d at 1467).

     In light of our determination, we do not reach defendant’s
alternative contention in appeal No. 2 that the sentence imposed by
the court for reckless endangerment in the first degree is unduly
harsh and severe.




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
