                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     106600
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ERIC L. GREEN,
                    Appellant.
________________________________


Calendar Date:   May 27, 2016

Before:   McCarthy, J.P., Rose, Devine and Aarons, JJ.

                             __________


      James E. Long, Public Defender, Albany (Theresa M. Suozzi
of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered August 15, 2013, convicting defendant
upon his plea of guilty of the crimes of attempted murder in the
second degree and robbery in the first degree.

      In satisfaction of a pending indictment charging him with
multiple crimes arising from an incident wherein he stabbed a
state trooper in the neck and took the trooper's radio, defendant
pleaded guilty to attempted murder in the second degree and
robbery in the first degree and executed a waiver of his right to
appeal. County Court agreed, as part of the plea agreement, to
impose an aggregate prison sentence of 30 years to be followed by
postrelease supervision of five years. Defendant received the
                              -2-                106600

agreed-upon sentence, and he now appeals.

      Defendant's challenge to the validity of his appeal waiver
is unavailing. County Court explained to defendant that the
right to appeal was separate and distinct from those rights
automatically forfeited by the plea, after which defendant stated
that he understood his right to appeal and wished to waive it
(see People v Sanders, 25 NY3d 337, 341 [2015]; People v Forget,
136 AD3d 1115, 1116 [2016]; People v Ramos, 135 AD3d 1234, 1235
[2016]). Defendant then reviewed a detailed written waiver with
defense counsel and executed it in open court and confirmed that
he understood it (see People v Bradshaw, 18 NY3d 257, 265-267
[2011]; People v Clark, 135 AD3d 1239, 1240 [2016], lv denied 27
NY3d 995 [2016]).

      Defendant also argues that his guilty plea should be
vacated as it was not knowingly, intelligently and voluntarily
entered and, while that issue survives his appeal waiver, the
record does not reflect that it is preserved for our review via
an appropriate postallocution motion (see People v Love, 137 AD3d
1486, 1487 [2016]; People v Blair, 136 AD3d 1105, 1106 [2016],
lvs denied ___ NY3d ___, ___ [May 10, 2016]). Upon our review of
the record, we are nevertheless satisfied that the narrow
exception to the preservation rule is applicable, as statements
were made during the plea colloquy that "clearly cast[]
significant doubt upon the defendant's guilt or otherwise
call[ed] into question the voluntariness of the plea" and
required further inquiry on the part of County Court (People v
Lopez, 71 NY2d 662, 666 [1988]; see People v Tyrell, 22 NY3d 359,
364 [2013]; People v Mox, 20 NY3d 936, 938 [2012]).

      Defense counsel advised County Court during the plea
colloquy that there were significant issues regarding defendant's
mental state when he attacked the trooper and that, as a result,
a psychiatrist had assessed whether defendant "was unable to form
the intent necessary" to commit the charged offenses (People v
Mox, 20 NY3d at 938; see Penal Law § 40.15; see also Penal Law
§§ 125.25 [1]; 160.00, 160.15 [3]). Defense counsel then
represented that defendant had agreed to accept the proffered
plea bargain because the psychiatrist opined that an insanity
defense could properly be raised at trial, but that he would be
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unable to testify to a reasonable degree of medical certainty
that defendant "did not understand the nature and consequences of
his actions or that his conduct was wrong" (see Penal Law
§ 40.15). County Court's response to those statements was
limited to confirming that defendant had heard the
representations of defense counsel, discussed those issues with
him and believed that the plea agreement was "a fair resolution."
The Court of Appeals has made clear, however, that "question[s]
to [a] defendant verifying that he [or she] discussed that
defense with his [or her] attorney and opted not to assert it"
are insufficient under these circumstances (People v Mox, 20 NY3d
at 939; see People v Dukes, 120 AD3d 1597, 1597-1599 [2014]).
Thus, absent a further inquiry into defendant's understanding of
the affirmative defense and its potential applicability by County
Court, the plea "should not have been accepted by the court and
must now be vacated" (People v McMillan, 129 AD3d 1113, 1114
[2015]; see People v Mox, 20 NY3d at 938-939; People v Dukes, 120
AD3d at 1597-1599).

      In light of the foregoing, we need not address defendant's
remaining contentions.

     McCarthy, J.P., Rose and Aarons, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Albany County for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
