| People v Dukes |
| 2014 NY Slip Op 06454 [120 AD3d 1597] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Kevin A. Dukes, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered August 17, 2010. The judgment convicted defendant, upon his plea ofguilty, of robbery in the first degree and criminal sexual act in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated and the matter is remitted to Supreme Court, Monroe County,for further proceedings on the indictment.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of robbery in the first degree (Penal Law § 160.15 [4]) and criminalsexual act in the first degree (§ 130.50 [1]). We agree with defendant thatSupreme Court erred in accepting his plea without ensuring that he was making aninformed decision to waive a potential affirmative defense to the robbery charge. Wetherefore reverse the judgment of conviction, vacate the plea and remit the matter toSupreme Court for further proceedings on the indictment.
The indictment alleged, inter alia, that defendant and an accomplice robbed a store inRochester by displaying what appeared to be a firearm. At the outset of the plea colloquy,defense counsel stated that, although defendant told the police that he used a .45 caliberhandgun in the robbery, the weapon he had used was actually a BB gun. Defense counselfurther stated, however, that defendant would waive the affirmative defense set forth inPenal Law § 160.15 (4), which applies where the weapon used in therobbery "was not a loaded weapon from which a shot, readily capable of producing deathor other serious physical injury, could be discharged." During the ensuing plea colloquy,defendant stated that the gun he had used was a BB gun that looked like a revolver, not a.45 caliber handgun as he had told the police. At the end of the plea colloquy, defensecounsel, in response to concerns expressed by the prosecutor, again stated that defendantwas waiving the affirmative defense set forth in section 160.15 (4). The court thenaccepted defendant's plea.
Although "no catechism is required in connection with the acceptance of a plea" (People v Goldstein, 12 NY3d295, 301 [2009]), it is well established that "where the defendant's recitation of thefacts underlying the crime pleaded to clearly casts significant doubt upon the defendant'sguilt or otherwise calls into question the voluntariness of the plea, . . . thetrial court has a duty to inquire further to ensure that [the] defendant's guilty plea isknowing and voluntary" (People v Lopez, 71 NY2d 662, 666 [1988]; seePeople v Serrano, 15 NY2d 304, 308-309 [1965]). "Where the court fails in this dutyand accepts the plea without further inquiry, the defendant may challenge the sufficiencyof the allocution on direct appeal," despite having failed to make that challenge in a"postallocution motion" directed to the plea court (Lopez, 71 NY2d at 666).
Here, we conclude that reversal is mandated by the reasoning of People v Mox (20 NY3d936 [2012]). In that case, the defendant, who was offered the opportunity to pleadguilty to a reduced [*2]charge of manslaughter in the firstdegree, stated during the plea colloquy that he was hearing voices on the day of thehomicide, was in a psychotic state, and had not taken his prescribed medication forseveral days. County Court nevertheless accepted the defendant's plea. Immediately afterthe plea was entered, defense counsel stated that she had discussed with the defendantthe potential defense of not guilty by reason of mental disease or defect, and that thedefendant was willing to waive that defense in order to accept the People's plea offer.The court then asked the defendant if that was correct, and the defendant answered in theaffirmative. The Court of Appeals vacated the plea, concluding that County Court had aduty to "inquire further into whether defendant's decision to waive a potentially viableinsanity defense was an informed one such that his guilty plea was knowing andvoluntary" (Mox, 20 NY3d at 939). According to the Court of Appeals, CountyCourt's "single question to defendant verifying that he discussed that defense with hisattorney and opted not to assert it was insufficient to meet that obligation"(id.).
Here, as noted, defendant made statements during the plea colloquy indicating thathe had a potentially viable affirmative defense to the charge of robbery in the firstdegree. Thus, the court was obligated under the holding of Mox and the rule setforth in Lopez to ensure that defendant was aware of that defense and that he wasknowingly and voluntarily waiving it. Although defense counsel stated that he haddiscussed the potential defense with defendant and that defendant was waiving it in orderto accept the plea offer, the court did not ask any questions of defendant regarding thepotential defense. Thus, the facts of the instant case present an even stronger basis forvacatur of the plea than those in Mox, where the plea court took the additionalstep—one not taken here—of asking the defendant whether it was true thathe had discussed the applicable affirmative defense with his attorney and was willing towaive it (see Mox, 20 NY3d at 939; see also People v Grason, 107 AD3d 1015, 1016[2013]).
In light of our determination, we do not address defendant's remaining contention.Present—Smith, J.P., Fahey, Lindley, Valentino and DeJoseph, JJ.