Opinion
No. KA 07-01357.
June 6, 2008.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered April 6, 2007. The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.
CARL M. DARNALL, FAIRPORT, FOR DEFENDANT-APPELLANT.
DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF COUNSEL), FOR RESPONDENT.
Present: Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, the admission is vacated and the matter is remitted to Oswego County Court for further proceedings on the declaration of delinquency.
Memorandum: Defendant was convicted following a jury trial of two counts of felony driving while intoxicated (Vehicle and Traffic Law § 1192, [3]; § 1193 [1] [c] [former (ii)]) and was sentenced to, inter alia, a period of probation. Defendant subsequently admitted that he violated the conditions of his probation, and he now appeals from a judgment revoking the sentence of probation and sentencing him to a term of imprisonment. We agree with defendant that the record fails to establish that his admission was knowingly, voluntarily and intelligently entered ( see generally People v Lopez, 71 NY2d 662, 665). Defendant responded, "Yes sir" to County Court's question whether anyone "threaten[ed] you to, or made any promises other than what was discussed" with respect to the sentence to be imposed, as well as the continuation of the fine previously imposed. The court then failed to make any inquiry to ascertain the meaning of defendant's response. We "must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant" ( People v Frederick, 45 NY2d 520, 525), and the record fails to establish that there were no threats or promises that motivated defendant to admit to the violation of probation ( cf. People v Muniz, 156 AD2d 484, lv denied 75 NY2d 870). We therefore reverse the judgment, vacate defendant's admission and remit the matter to County Court for further proceedings on the declaration of delinquency.