People v. Mackey

Yesawich, Jr., J.,

dissents and votes to reverse in a memorandum. Yesawich, Jr., J. (dissenting). I respectfully dissent.

Although defendant did not raise the agency defense as a ground to vacate his plea, he is not for this reason necessarily precluded from raising this issue for the first time on appeal (see, People v McIntosh, 140 AD2d 948, 949; People v Sobczak, 105 AD2d 1053, 1054; see also, People v Cooks, 67 NY2d 100, 103, n 1, 104). Nor in this instance should he be, for the facts recited in the allocution do not, in my view, clearly and unambiguously rule out defendant’s claim that he…