Opinion
January 13, 1992
Appeal from the County Court, Nassau County (Orenstein, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, the plea is vacated, and the matter is remitted to the County Court, Nassau County, for further proceedings on the indictment.
It is well settled that where, as here, the defendant's factual plea allocution casts doubt upon her guilt by negating an essential element of the crime or by raising a defense, the court may not accept the plea without making further inquiry into whether, in fact, the defendant is guilty and apprising her of the availability of any defense implicated by her allocution (People v. Thomas, 159 A.D.2d 529, 530; People v. Zeth, 148 A.D.2d 960, 961; People v. Benton, 143 A.D.2d 526). If, in pleading, the defendant's allocution casts doubt upon her guilt, she must be given an opportunity to withdraw her plea and she "shall not be permitted to plead guilty under such circumstances until the court ascertains that the defendant is aware of what [s]he is doing" (People v. Nixon, 21 N.Y.2d 338, 344, cert denied sub nom. Robinson v. New York, 393 U.S. 1067). In the instant case, the defendant, in pleading guilty to a charge of criminal sale of a controlled substance in the fifth degree, stated facts which established the existence of a possible agency defense. Because the court did not explain to the defendant the existence of this possible agency defense, her guilty plea was not knowing, intelligent and voluntary (cf., People v. Pelaccio, 141 A.D.2d 772). Accordingly, the court should not have denied her motion to withdraw her plea (see, People v. Flihan, 166 A.D.2d 927).
As the defendant's plea was not knowingly, intelligently and voluntarily entered, her waiver of her right to appeal was similarly deficient (see, People v. Bray, 154 A.D.2d 692, 693). Therefore, this ineffective waiver does not preclude review of the denial of the defendant's motion to withdraw her plea, as the right to challenge the voluntariness of the plea is a right that the defendant always retains (see, People v. Seaberg, 74 N.Y.2d 1, 10; cf., People v. Hall, 176 A.D.2d 960; People v. Stephens, 175 A.D.2d 272). Kunzeman, J.P., Balletta, Miller and Ritter, JJ., concur.