| People v Marrero |
| 2015 NY Slip Op 05974 [130 AD3d 1148] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vIzmehel Marrero, Appellant. |
Eric K. Schillinger, East Greenbush, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered February 21, 2013, convicting defendant upon his plea of guilty ofthe crime of sexual abuse in the first degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to the reducedcharge of sexual abuse in the first degree and waived his right to appeal. He wasthereafter sentenced as a second felony offender to the agreed-upon prison term of fiveyears followed by 10 years of postrelease supervision. Defendant appeals, arguing thathis plea was not knowingly, voluntarily and intelligently entered.
Although defendant waived his right to appeal and did not preserve his challenge tothe voluntariness of his plea by making an appropriate postallocution motion, the narrowexception to the preservation rule was triggered here inasmuch as the allocution castssignificant doubt upon his guilt (see People v Lopez, 71 NY2d 662, 666 [1988];People v Morehouse, 109AD3d 1022, 1022 [2013]; People v Pagan, 36 AD3d 1163, 1164 [2007]). As relevanthere, a person is guilty of sexual abuse in the first degree when he or she subjects anotherto sexual contact by forcible compulsion (see Penal Law § 130.65[1]).
During the plea colloquy, County Court required that defendant provide a recitationof the underlying facts so that the court could assure itself that defendant's conductsatisfied the elements of the crime to which he was pleading. In response to the court'squestioning, defendant admitted that he had subjected the victim to sexual contact by"grabb[ing] her [*2]breasts."[FN*] County Court then inquired ofdefendant, "did you do that by forcible compulsion, in other words, without her consentor without her authority?" Forcible compulsion, however, is defined as compellinganother "by either . . . use of physical force; or . . . a threat,express or implied, which places a person in fear of immediate death or physical injury tohimself, herself or another person" (Penal Law § 130.00 [8]). Defendantanswered in the affirmative, and County Court accepted his guilty plea withoutconducting any further inquiry into the facts or readdressing the element of forciblecompulsion.
By equating forcible compulsion with lack of consent, County Court misdefined anessential element of the crime to which defendant was pleading. While defendant was notrequired to recite facts establishing every element of the crime (see People v Goldstein, 12NY3d 295, 301 [2009]), we cannot countenance a conviction that rests upon amisconception of the key element of forcible compulsion (see People v Johnson, 23NY3d 973, 975-976 [2014]; People v Worden, 22 NY3d 982, 985 [2013]; see also People v Williams,123 AD3d 240, 243-244 [2014]). Because the record fails to establish that defendantunderstood the nature of the charge or that his guilty plea was knowingly andintelligently entered, his plea must be vacated and the matter remitted to County Court(see People v Johnson, 23 NY3d at 976; People v Lopez, 71 NY2d at666; People v Castetter, 64AD3d 1007, 1008-1009 [2009]; People v Ramirez, 42 AD3d 671, 673 [2007]; People vPagan, 36 AD3d at 1164-1165; People v Makas, 273 AD2d 510, 511-512[2000]).
McCarthy, Egan Jr. and Rose, JJ., concur. Ordered that the judgment is reversed, onthe law, plea vacated and matter remitted to the County Court of Rensselaer County forfurther proceedings not inconsistent with this Court's decision.
Footnote *:Evidence that defendantgrabbed the victim's breasts, without more, is insufficient to establish the element offorcible compulsion (see Peoplev Fuller, 50 AD3d 1171, 1174-1175 [2008], lv denied 11 NY3d 788[2008]).