Appellate Division of the Supreme Court of New York, Second DepartmentNov 6, 1989
155 A.D.2d 482 (N.Y. App. Div. 1989)
155 A.D.2d 482547 N.Y.S.2d 143

November 6, 1989

Appeal from the Supreme Court, Kings County (Corriero, J.).

Ordered that the judgments are reversed, on the law and as a matter of discretion in the interest of justice, the pleas are vacated, and the cases are remitted to the Supreme Court, Kings County, for further proceedings on the indictments.

Although the People contend that the defendant failed to preserve the issue of the adequacy of his plea allocutions by failing to move to withdraw his guilty pleas or to vacate the judgments of conviction, where, as here, the nature of the challenge is readily and clearly apparent on the face of the record, we may still review the issue without the defendant first having so moved (see, People v Lopez, 71 N.Y.2d 662; People v Angelakos, 70 N.Y.2d 670; People v Sobczak, 105 A.D.2d 1053). Several times during the course of his plea allocutions, the defendant stated he used a "toy" gun or a "fake" gun, and once stated that he did not have a gun at all, thus raising the possibility of an affirmative defense to the charges (see, Penal Law § 160.15). The court should have inquired further in order to assure that the defendant was fully aware of the nature of the charges against him and of the possible affirmative defense (People v Royster, 91 A.D.2d 1074; People v Hassan, 79 A.D.2d 713; People v Waddell, 66 A.D.2d 807). Mangano, J.P., Kunzeman, Rubin, Eiber and Balletta, JJ., concur.