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

1250
KA 12-01947
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD WOODS, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered September 6, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
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 Supreme Court, Erie County, for further proceedings on the
indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted assault in the second degree
(Penal Law §§ 110.00, 120.05 [2]). We agree with defendant that the
plea is invalid based upon the factual insufficiency of the plea
allocution. We note at the outset that defendant did not preserve for
our review his challenge to the factual sufficiency of the plea
allocution by moving to withdraw the plea or to vacate the judgment of
conviction (see People v Lopez, 71 NY2d 662, 665). We conclude,
however, that this case falls within the narrow exception to the
preservation requirement inasmuch as defendant’s response to Supreme
Court’s question concerning his guilt “clearly cast[] significant
doubt upon his guilt or otherwise call[ed] into question the
voluntariness of the plea,” and the court failed to conduct the
requisite further inquiry to ensure that the plea was knowingly and
voluntarily entered (id. at 666; see People v Morehouse, 109 AD3d
1022, 1022-1023; People v Roy, 77 AD3d 1310, 1310-1311). Defendant,
moreover, never affirmatively pleaded guilty to attempted assault (see
People v Nieves, 72 AD2d 609, 610), nor did he admit to any conduct
underlying the crime (see People v Bellis, 78 AD2d 1014, 1014). We
therefore reverse the conviction, vacate the plea and remit the matter
                                 -2-                          1250
                                                         KA 12-01947

to Supreme Court for further proceedings on the indictment.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
