People v Martinez, 2024 NY Slip Op 02938 [227 AD3d 1110]

May 29, 2024

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Jorge W. Martinez, Appellant.

Samuel S. Coe, White Plains, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered June 21, 2022, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is reversed, on the law, the defendant’s plea of guilty is vacated, and the matter is remitted to the County Court, Orange County, for further proceedings on the indictment.

Although the defendant failed to preserve for appellate review his contention concerning the factual recitation with respect to the charge of attempted burglary in the second degree, where, as here, the defendant’s factual recitation clearly casts significant doubt upon his guilt or otherwise calls into question the voluntariness of the plea, the defendant may challenge the sufficiency of the plea allocution on direct appeal despite the failure to move to withdraw his plea of guilty on that ground ( see People v Lopez , 71 NY2d 662, 666 [1988]).

The crime of attempted burglary in the second degree provides, in relevant part, that a person is guilty of that offense when, inter alia, he or she knowingly enters a dwelling unlawfully with the intent to commit a crime therein (Penal Law §§ 110.00, 140.25 [2]). During his plea allocution, the defendant stated that he did not enter the home knowingly. Upon further questioning by the County Court, the defendant stated that he had “no intent” to commit the crime. The defendant’s factual recitation therefore negated an essential element of attempted burglary in the second degree, which was not corrected by further inquiry by the court, thereby calling into question the voluntariness of the defendant’s plea ( see People v Rodriguez , 14 AD3d 719 , 719 [2005]). Accordingly, the judgment must be reversed, the plea of guilty vacated, and the matter remitted to the County Court, Orange County, for further proceedings on the indictment.

We need not reach the defendant’s remaining contentions in light of our determination. LaSalle, P.J., Christopher, Ford and Love, JJ., concur..