Reversed and remitted.
Frank H. Hiscock, Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [2] ), sexual abuse in the second degree (§ 130.60 [2] ), and endangering the welfare of a child (§ 260.10[1] ). Defendant contends that his plea should be vacated on the ground that it was coerced by County Court's statement that it would impose the maximum permissible sentence of imprisonment in the event defendant was convicted following a trial. As the People correctly concede, defendant's contention “ ‘survives [a] valid waiver of the right to appeal’ ” ( People v. Zimmerman, 100 A.D.3d 1360, 1362, 953 N.Y.S.2d 427, lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334; see People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053). Although “[d]efendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that his plea was coerced” ( People v. Lando, 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018; see People v. Boyd, 101 A.D.3d 1683, 1683, 956 N.Y.S.2d 382), we exercise our power to review his contention as a matter of discretion in the interest of justice ( see CPL 470.15[3][c] ). We agree with defendant that “the court's statement[ ] do[es] not amount to a description of the range of the potential sentences but, rather,[it] constitutes impermissible coercion, ‘rendering the plea involuntary and requiring its vacatur’ ” ( People v. Flinn, 60 A.D.3d 1304, 1305, 875 N.Y.S.2d 364; see People v. Kelley, 114 A.D.3d 1229, 1230, 980 N.Y.S.2d 850).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law, the plea is vacated, and the matter is remitted to Onondaga County Court for further proceedings on the indictment.