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DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s statement during the plea allocution raised a viable affirmative defense which required further inquiry by the court. The error was considered on appeal under a rare exception to the preservation requirement:

Although defendant’s contention survives his valid waiver of the right to appeal … , he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … . This case nonetheless falls within the rare exception to the preservation requirement … . Defendant made a statement during the plea allocution that raised a potentially viable affirmative defense pursuant to Penal Law § 130.10 (1), thereby “giving rise to a duty on the part of the court, before accepting the guilty plea, to ensure that defendant was aware of that defense and was knowingly and voluntarily waiving it” … . We conclude that the court’s inquiry here was insufficient to meet that obligation … . People v Rosario, 2018 NY Slip Op 07564, Fourth Dept 11-9-18

CRIMINAL LAW (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/APPEALS (PLEA ALLOCUTION, DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/PLEA ALLOCUTION (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/GUILTY PLEA (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))

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