(dissenting). We respectfully dissent. We would *1275reverse the judgment of conviction, grant defendant’s motion to withdraw the plea and remit for further proceedings on the indictment. The plea agreement provided for defendant to receive the maximum sentence on the top charges against him. He made a timely and detailed motion to withdraw his plea in which he asserted that he had made statements during the plea allocution that negated an essential element of the crime of reckless endangerment in the first degree, he had been coerced to accept the plea by the statement by County Court (LaBuda, J.) that he could receive consecutive sentences on all counts if convicted after a trial, and he was innocent of the depraved indifference conduct undergirding the crime of reckless endangerment in the first degree. The motion was considered by a different judge than the one who took the plea,1 and denied without a hearing. This appeal ensued.
“As defendant’s challenge implicates the voluntariness of his plea, it survives his waiver of appeal and it is preserved by his motion to withdraw his plea” (People v Wyant, 47 AD3d 1068, 1069 [2008] [citations omitted]; see People v Pace, 284 AD2d 806, 806-807 [2001], lv denied 97 NY2d 686 [2001]). While there is no uniform catechism for taking a plea, if defendant said or failed to say something in his allocution that negated an element of the crime or otherwise called into doubt his guilt or the voluntariness of his plea, then County Court was required to conduct further inquiry (see People v Seeber, 4 NY3d 780, 781 [2005]; People v Wyant, 47 AD3d at 1069; People v Ramirez, 42 AD3d 671, 672 [2007]). The top two counts to which defendant pleaded include an element of depraved indifference. Approximately a month before defendant pleaded guilty to those counts, the Court of Appeals made clear that the element of “depraved indifference to human life is a culpable mental state” (People v Feingold, 7 NY3d 288, 294 [2006]) and implicitly overruled “those depraved indifference reckless endangerment cases that rest on the premise that depraved indifference is measured not by a culpable mental state but by an objective assessment of the risk involved” (id. at 294 n 2; see generally People v Baptiste, 51 AD3d 184 [2008]).
The Court of Appeals instructed that even where a “defendant might well be said to have acted with the mens rea of depraved indifference had the factfinder simply announced a *1276guilty verdict[,] . . . [w]hen a jury (or . . . the court at a bench trial) pointedly says that [the] defendant was not depravedly indifferent, it is not our place to say that he was” (People v Feingold,- 7 NY3d at 295). In other words, even where the defendant engages in conduct that would support an inference of the requisite mental state—as, for example, when “a large number of people were endangered” due to a defendant’s actions (id.)—a conviction of depraved indifference murder cannot be upheld when the factfinder has expressly addressed the defendant’s culpable mental state and pronounced the defendant to be innocent of “the core criminal element, depraved indifference” (id.). Thus, in Feingold, the Court reduced the defendant’s conviction of reckless endangerment in the first degree to reckless endangerment in the second degree when the factfinder indicated that the defendant “committed an extremely reckless and foolish act not because of his lack of regard for the lives of others but because of his focus upon his troubles and himself. While being reckless, the defendant’s state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act” (id. [internal quotation marks omitted]), as required to establish a mens rea of depraved indifference.
Here, the plea allocution reveals significant doubt that defendant acted with the requisite culpable mental state to commit reckless endangerment in the first degree. The allocution provided in relevant part:
“the court: And did you ignore the traffic directions and cause one of the construction workers to jump out of the way to avoid being hit by your car? . . .
“the defendant: I don’t know if he jumped out, your honor. I know I went by.
“the court: Very close. You could have killed him if you hit him?
“the defendant: I don’t think so. I don’t know.
“the court: You didn’t kill him, of course. But, you came so close that you created a situation that was very dangerous.
“[defense counsel]: Your honor, we don’t dispute the allegation. My client has no recollection of particular individuals. But, we don’t dispute the allegations and I have had an opportunity to review the allegations, as well as the statement with my client, and we don’t dispute the voracity [sic] of the situation.”
County Court (LaBuda, J.) did not inquire whether defendant agreed with counsel’s statement or otherwise seek clarification from defendant. Although we agree with the majority that *1277counsel’s comment could have been sufficient had this been a situation where defendant was pleading to a lesser or hypothetical crime (see People v Hadden, 158 AD2d 856, 857 [1990], lv denied 76 NY2d 847 [1990] [cited by the majority]; see also People v Matthie, 34 AD3d 987, 989-990 [2006], lvs denied 8 NY3d 805, 847 [2007]), defendant was pleading to the top counts, he had just cast doubt on his culpability to those counts and, at a minimum, the court should have elicited from defendant a “positive confirmation of his lawyer’s exposition” (People v Nixon, 21 NY2d 338, 350 [1967]).2 In our view, regardless of whether the allocution revealed conduct that would permit an inference of depraved indifference (see People v Suarez, 6 NY3d 202, 214 [2005]), defendant’s answers negated (or at least cast serious doubt upon whether he possessed) the necessary culpable mental state of depraved indifference when he drove his vehicle through the construction zone. Contrary to the conclusion of the majority, defendant did deny that he knew that he had actually endangered the workers’ lives, stating, “I don’t think so ... I don’t know,” in response to the court’s question regarding whether he could have killed one of the workers. Inasmuch as the court’s subsequent inquiry was not adequate to ensure that defendant understood the nature of the charge and intelligently entered the plea, we would vacate the plea and remit this matter on this ground alone.
While we agree with the majority that count 3 could have been imposed as a consecutive sentence to counts 1 and 2, there is merit to defendant’s argument that the People failed to show on this record that consecutive sentences could have been properly imposed on counts 1 and 2 as was stated to him by County Court (LaBuda, J.).3 Review of the allegations in the indictment and the facts adduced at the allocution (see People v Laureano, 87 NY2d 640, 644 [1996]) do not reveal the length of the construction zone or where the two flagmen were located. The affirmation in opposition to defendant’s motion by the Assistant District Attorney (who does not claim to have personal knowledge of the construction zone) gives no indication of the length of the zone. From this record, it is just as likely that the construction zone was 10 feet in length (or less) as it is that it was 10 miles (or more). The People’s burden of showing “the *1278crimes involved two separate and distinct acts” was not satisfied (id.; see People v Rodriguez, 217 AD2d 403, 404 [1995], lv denied 87 NY2d 850 [1995]; see generally People v Rosas, 8 NY3d 493, 496 [2007]; cf. People v Kendrick, 261 AD2d 646 [1999], lv denied 93 NY2d 1021 [1999]). Although receiving inaccurate information regarding a possible sentence is not dispositive, it is a relevant factor in considering whether a plea was knowing, intelligent and voluntary (see People v Garcia, 92 NY2d 869, 870 [1998]).
In summary regarding the plea, defendant asserted his innocence as to the alleged depraved indifference conduct, the Court of Appeals made clear in a decision shortly before the plea that a mens rea element was required, defendant’s allocution tended to undermine such element, defendant was provided inaccurate information as to his sentence exposure, he made a timely and detailed motion to withdraw his plea, and the People—while opposing the motion—did not assert prejudice. We would hold, both as a matter of law as well as in the interest of justice, that defendant should have been permitted to withdraw his guilty plea (see People v Leslie, 98 AD2d 977 [1983]; see also People v Derrick, 188 AD2d 486, 487 [1992]; People v Paulk, 142 AD2d 754, 755 [1988], appeal dismissed 72 NY2d 960 [1988]).
Finally, we would note that, even if the plea is permitted to stand, there was error in enhancing defendant’s sentence without affording him a meaningful opportunity to establish the plausible explanation offered for his initial failure to appear for sentencing. Enhancing a sentence without further inquiry is appropriate where a defendant fails to offer a plausible explanation for not adhering to Parker conditions (see People v Carpenter, 256 AD2d 1205 [1998], lv denied 93 NY2d 871 [1999]; see also People v Therrien, 301 AD2d 751, 752 [2003], Iv denied 99 NY2d 633 [2003]; People v Coleman, 270 AD2d 713, 714 [2000]). However, defendant’s counsel stated at sentencing that defendant was not present at the original sentencing dates because he was hospitalized with severe mental health issues. Counsel further requested that, if County Court (Ledina, J.) would not accept his statement in such regard, he be permitted to “put out subpoenas” for the purpose of proving such fact. The court nevertheless proceeded to enhance the sentence without commenting upon or allowing development of the plausible excuse offered by defendant.
Mercure, J.P., concurs. Ordered that the judgment is affirmed.
. It merits noting that the discretion accorded trial judges in deciding motions to withdraw pleas is premised in part upon (unlike here) having presided over the plea and thus being “best able to determine whether a plea is entered voluntarily, knowingly and intelligently” (People v Alexander, 97 NY2d 482, 485 [2002]).
. In his affidavit in support of his motion to withdraw the plea, defendant indicated that his attorney made the statement without consulting with him, that he did not agree with the statement, and that he was “attempting to assert my innocence, while in a vulnerable position.”
. Indeed, County Court’s statement that “you will wind up getting about 12 to 48” years is incorrect even accepting the majority’s position that counts 1 and 2 could have been consecutive.