PETERS, P.J.
Gail B. Rubenfeld, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.
Before: PETERS, P.J., EGAN JR., ROSE, DEVINE and AARONS, JJ.
PETERS, P.J.Appeals (1) from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 19, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered January 6, 2015 in Sullivan County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged with criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). Following the denial of his motion to suppress statements made to police and physical evidence seized upon his arrest, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree in satisfaction of the charges and purportedly waived his right to appeal. In accordance with the plea agreement, County Court sentenced defendant as a second felony offender to eight years in prison to be followed by two years of postrelease supervision. Defendant's subsequent CPL article 440 motion to vacate the judgment of conviction was denied without a hearing. He now appeals from the judgment of conviction and, by permission, from the order denying his motion to vacate.
Initially, we find that defendant's waiver of the right to appeal was not valid. During the plea colloquy, County Court failed to adequately convey "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see
People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lemon, 137 A.D.3d 1422, 1423, 27 N.Y.S.3d 726 [2016], lv. denied 27 N.Y.3d 1135, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ; People v. Blackmon, 122 A.D.3d 1071, 1072, 996 N.Y.S.2d 769 [2014], lv. denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015] ). Although defendant executed a detailed written waiver, there was no attempt by the court to " ensure that defendant understood the content or consequences of the appeal waiver" (People v. Williams, 132 A.D.3d 1155, 1155, 20 N.Y.S.3d 176 [2015], lv. denied 27 N.Y.3d 1157, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ; accord People v. Gonzalez, 138 A.D.3d 1353, 1354, 28 N.Y.S.3d 919 [2016] ; see People v. Lemon, 137 A.D.3d at 1423, 27 N.Y.S.3d 726 ; People v. Ritter, 124 A.D.3d 1133, 1134, 2 N.Y.S.3d 693 [2015] ).
Because the appeal waiver is invalid, defendant is not precluded from and citations omitted]; see People v. Tyrell, 22 N.Y.3d at 365–366, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Mones, 130 A.D.3d at 1245, 13 N.Y.S.3d 686 ; People v. Klinger, 129 A.D.3d at 1116–1117, 10 N.Y.S.3d 366 ).
Here, County Court made no effort to explain the consequences of a guilty plea, making only a passing reference to them by asking defendant if anyone was forcing him to give up his "right[ ] to [a] jury trial" (see People v. Mones, 130 A.D.3d at 1245–1246, 13 N.Y.S.3d 686 ; People v. Klinger, 129 A.D.3d at 1117, 10 N.Y.S.3d 366 ; compare People v. Proper, 133 A.D.3d at 919, 18 N.Y.S.3d 793 ). The court further failed to establish that defendant had consulted with his counsel about the trial-related rights that he was forfeiting by pleading guilty or the constitutional consequences of a guilty plea, "instead making a vague inquiry into whether defendant had spoken to defense counsel" (People v. Klinger, 129 A.D.3d at 1117, 10 N.Y.S.3d 366 ) or had any questions of his counsel regarding his "rights," "the plea bargain, the trial and anything else that [was] important to [him]" (see People v. Lowe, 133 A.D.3d at 1101, 21 N.Y.S.3d 399 ; People v. Mones, 130 A.D.3d at 1245, 13 N.Y.S.3d 686 ; People v. Klinger, 129 A.D.3d at 1117, 10 N.Y.S.3d 366 ). With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated (see People v. Lowe, 133 A.D.3d at 1101, 21 N.Y.S.3d 399 ; People v. Klinger, 129 A.D.3d at 1117, 10 N.Y.S.3d 366 ; People v. Vences, 125 A.D.3d 1050, 1051, 3 N.Y.S.3d 185 [2015] ).
Finally, we reject defendant's contention that County Court erred in denying his CPL article 440 motion without a hearing. Inasmuch as defendant's claim that he was deprived of his right to testify before the grand jury can be determined on the record and was reviewable on direct appeal, County Court properly denied the motion without a hearing (see CPL 440.10[2] [b] ; People v. Jones, 101 A.D.3d 1482, 1483, 956 N.Y.S.2d 703 [2012], lv. denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ; People v. Chiacchiarini, 91 A.D.3d 1118, 1119, 936 N.Y.S.2d 394 [2012], lv. denied 19 N.Y.3d 863, 947 N.Y.S.2d 411, 970 N.E.2d 434 [2012] ; People v. Lagas, 49 A.D.3d 1025, 1026, 853 N.Y.S.2d 434 [2008], lvs. denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248 [2008], 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ).
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this Court's decision.
ORDERED that the order is affirmed.
EGAN JR., ROSE, DEVINE and AARONS, JJ., concur.