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A CHALLENGE TO THE VOLUNTARINESS OF A GUILTY PLEA SURVIVES A VALID WAIVER OF APPEAL; COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO WITHDRAW THE GUILTY PLEA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined (1) a challenge to the voluntariness of a guilty survives a valid waiver of appeal, and (2) a hearing should have been held on defendant’s motion to withdraw the plea:

Because defendant’s challenge to the voluntariness of her plea would survive even a valid waiver of the right to appeal, we need not address the validity of that waiver … . We agree with defendant that County Court erred in denying her motion to withdraw her plea without a hearing because the record—specifically, defense counsel’s affidavit swearing that defendant’s plea was coerced—”raises a legitimate question as to the voluntariness of the plea” … . We therefore hold the case, reserve decision, and remit the matter to County Court to appoint new defense counsel and to rule on defendant’s motion to withdraw her plea following an evidentiary hearing. People v Gumpton, 2021 NY Slip Op 06519, Fourth Dept 11-19-21

 

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