Opinion
March 29, 2000.
Appeal from Judgment of Herkimer County Court, Kirk, J. — Burglary, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., HAYES, HURLBUTT, SCUDDER AND KEHOE, JJ.
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). 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 N.Y.2d 662, 666; People v. Costanza, 244 A.D.2d 988; People v. Mosher, 222 A.D.2d 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 A.D.2d 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 conclude that they are lacking in merit.