Decided on October 27, 2026

No. 117 SSM 5

[*1]

MEMORANDUM:

The order of the Appellate Division should be reversed and the case remitted to that Court for further proceedings in accordance with this memorandum.

In People v Lopez, we recognized an exception to our preservation requirement "where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea" and the court fails to make "further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered" (71 NY2d 662, 666 [1988] [internal citation omitted]). Under those circumstances, we held that "[a] defendant may challenge the sufficiency of [their plea] allocution on direct appeal, notwithstanding that a formal postallocution motion was not made" (id.). Here, defendant concedes, based on our recent holding in People v Rios (— NY3d —, 2026 NY Slip Op 00963 [2026]), that her postplea statements do not fall within the Lopez exception. Upon defendant's concession, we agree that defendant's challenge to her plea is unpreserved for appellate review because she did not move to withdraw her plea nor vacate the judgment of conviction (see id. at —, 2026 NY Slip Op 00963, *3). We remit to the Appellate Division for further proceedings.

On review of submissions pursuant to section 500.11 of the Rules, order reversed and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur.

Decided October 27, 2026