People v. McCawley

Appellate Division of the Supreme Court of New York

People v. McCawley

270 A.D.2d 895, 705 N.Y.S.2d 544, 2000 N.Y. App. Div. LEXIS 3568

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 29, 2000

StatusPublished

This text of 270 A.D.2d 895 (People v. McCawley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McCawley, 270 A.D.2d 895, 705 N.Y.S.2d 544, 2000 N.Y. App. Div. LEXIS 3568 (N.Y. Ct. App. 2000).

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Opinion

—Judgment unanimously reversed on the law, plea vacated and matter remitted to Herkimer County Court for further proceedings on the superior court information. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of burglary in the second degree (see, Penal Law § 140.25 [2]). During the plea allocution, the statements of defendant raised, the affirmative defense that he was lawfully in the victim’s home. Defendant contends that County Court erred in accepting his guilty plea without conducting further inquiry to determine whether defendant was fully aware of the defense and was waiving it. We agree (see, People v Lopez, 71 NY2d 662, 666; People v Costanza, 244 AJD2d 988; People v Mosher, 222 AD2d 1034). Defendant may raise this issue on appeal despite his failure to move to withdraw the plea or vacate the judgment of conviction (see, People v Lopez, supra, at 666; People v Costanza, supra, at 989; People v Simone, 179 AD2d 694, 695). Therefore, we reverse the judgment, vacate the plea and remit the matter to Herkimer County Court for further proceedings on the superior court information.

We have examined defendant’s remaining contentions and [896]*896conclude that they are lacking in merit. (Appeal from Judgment of Herkimer County Court, Kirk, J. — Burglary, „ 2nd Degree.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Kehoe, JJ.

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—Judgment unanimously reversed on the law, plea vacated and matter remitted to Herkimer County Court for further proceedings on the superior court information. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of burglary in the second degree (see, Penal Law § 140.25 [2]). During the plea allocution, the statements of defendant raised, the affirmative defense that he was lawfully in the victim’s home. Defendant contends that County Court erred in accepting his guilty plea without conducting further inquiry to determine whether defendant was fully aware of the defense and was waiving it. We agree (see, People v Lopez, 71 NY2d 662, 666; People v Costanza, 244 AJD2d 988; People v Mosher, 222 AD2d 1034). Defendant may raise this issue on appeal despite his failure to move to withdraw the plea or vacate the judgment of conviction (see, People v Lopez, supra, at 666; People v Costanza, supra, at 989; People v Simone, 179 AD2d 694, 695). Therefore, we reverse the judgment, vacate the plea and remit the matter to Herkimer County Court for further proceedings on the superior court information.

We have examined defendant’s remaining contentions and [896]*896conclude that they are lacking in merit. (Appeal from Judgment of Herkimer County Court, Kirk, J. — Burglary, „ 2nd Degree.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Kehoe, JJ.

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Bluebook (online)

270 A.D.2d 895, 705 N.Y.S.2d 544, 2000 N.Y. App. Div. LEXIS 3568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mccawley-nyappdiv-2000.

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