The People of the State of New York, Respondent, v. Rafael Sabari, Appellant

The People of the State of New York, Respondent, v Rafael Sabari, Appellant. [720 NYS2d 864] [MAJORITY] —Judgment unanimously reversed on the law, plea vacated and matter remitted to Onondaga County Court for further proceedings on the indictment. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10 [1]). When County Court asked defendant during the allocution whether he committed the as-, sault, defendant replied that he was drunk and did not remember what happened. Based upon that reply, “an additional inquiry should have been made to clarify whether the defendant was asserting that he had been intoxicated to such degree as to negate intent, and if so, whether he knowingly waived this potential defense” (People v Simone, 179 AD2d 694, 695; see, People v Jimenez, 73 AD2d 533, 534). The court erred in accepting the plea without making such additional inquiry (see, People v Simone, supra, at 695; People v Jimenez, supra, at 534). Therefore, we reverse the judgment, vacate the plea and remit the matter to Onondaga County Court for further proceedings on the indictment. (Appeal from Judgment of Onondaga County Court, Burke, J. — Assault, 1st Degree.) Present — Pigott, Jr., P. J., Green, Hayes, Scudder and Kehoe, JJ.