| People v Banks |
| 2016 NY Slip Op 02127 [137 AD3d 1458] |
| March 24, 2016 |
| Appellate Division, Third Department |
[*1](March 24, 2016)
| The People of the State of New York, Respondent, v Cory Banks, Appellant. |
David E. Woodin, Catskill, for appellant, and appellant pro se.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (McGuire,J.), rendered October 15, 2013, convicting defendant upon his plea of guilty of the crimeof rape in the second degree.
Defendant was indicted on one count of rape in the first degree and one count of rapein the third degree stemming from an incident in which he was alleged to have forced acoworker to engage in sexual intercourse with him. Following plea negotiations,defendant pleaded guilty to one count of rape in the second degree in full satisfaction ofthe indictment and waived his right to appeal in exchange for a sentencing commitmentof five years in prison with up to 15 years of postrelease supervision. In the course of theplea allocution, County Court led defendant in a factual recitation and also advised himthat, as a condition of the agreement, it expected him to "respond truthfully and takeresponsibility for engaging in non-consensual intercourse with the [victim]" during hispre-sentencing probation interview. Prior to sentencing, defendant twice moved towithdraw his plea on the ground that, among other things, it was not entered knowingly,voluntarily and intelligently. The court denied the motions and, after determining thatdefendant had failed to take responsibility for engaging in nonconsensual sex with thevictim at his probation interview, sentenced him as a second felony offender to anenhanced sentence of seven years in prison to be followed by 15 years of postreleasesupervision. Defendant appeals.
As an initial matter, defendant's contention that his plea was not knowing, voluntary,and intelligent survives his waiver of the right to appeal and was preserved by anappropriate [*2]postallocution motion (see People v Lacroix, 133AD3d 1095, 1096 [2015]; People v White, 85 AD3d 1493, 1493 [2011]). The crimeto which defendant pleaded was not a lesser included offense of an offense charged inthe indictment, either by virtue of its elements or by operation of CPL 220.20, whichexpands the definition of lesser included offenses for plea purposes. However, asdefendant's plea was "to a lesser crime technically inconsistent with the crime charged,albeit sharing common elements and involving the same victim," it fell within one of thetwo recognized "narrow exceptions" to the restraints on permissible pleas contained inCPL 220.10 (People v Johnson, 89 NY2d 905, 908 [1996]).
Where, as here, a defendant pleads to a lesser crime as part of a plea bargain, thecourt is not required to engage in a factual recitation in order to establish the elements ofthe crime (see People v Clairborne, 29 NY2d 950, 951 [1972]; People v Harris, 125 AD3d1506, 1507 [2015], lv denied 26 NY3d 929 [2015]; People v McQueen, 57 AD3d1103, 1103 [2008], lv denied 12 NY3d 760 [2009]), and, in fact, "undersuch circumstances defendants can even plead guilty to crimes that do not exist" (People v Johnson, 23 NY3d973, 975 [2014]). In this instance, although not required to do so, County Courtnevertheless sought to elicit the details of the crime from defendant prior to accepting hisplea and led him in a factual recitation. The questions posed by the court during theallocution appeared to be designed to elicit from defendant facts supporting the elementsof rape in the third degree, a crime which had been charged in the indictment, but was tobe dismissed as part of the plea to rape in the second degree; notably, rape in the thirddegree includes the element that the victim's "words and acts" demonstrated that he orshe did not consent to sexual intercourse with the defendant (Penal Law§ 130.05 [2] [d]; see Penal Law § 130.25). In responseto the court's inquiries, defendant admitted that he had engaged in nonconsensual sexualintercourse with the victim and that the intercourse was nonconsensual because thevictim had "indicated to [him], by words or actions, that she did not wish to engage insexual intercourse with [him]." This factual recitation was inconsistent with the crime towhich he was pleading and, in fact, negated an element of that crime, namely that thevictim be "incapable of consent by reason of being mentally disabled or mentallyincapacitated" (Penal Law § 130.30 [2] [emphasis added]).
County Court failed to conduct any further inquiry prior to accepting the plea inorder "to ensure that defendant underst[ood] the nature of the charge and that the plea[was] intelligently entered" (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Castetter, 64AD3d 1007, 1008-1009 [2009]; People v Ocasio, 265 AD2d 675, 677[1999]). Thus, under the unusual circumstances presented here, we are constrained tofind that the court erred in denying defendant the opportunity to withdraw his plea, as therecord fails to demonstrate that his plea was entered knowingly and intelligently (seePeople v Johnson, 23 NY3d at 975-976; People v Worden, 22 NY3d 982, 985-986 [2013]; People v Marrero, 130 AD3d1148, 1149 [2015]). Accordingly, defendant's plea must be vacated and the matterremitted to County Court. In light of this determination, defendant's remainingcontentions are rendered academic.
McCarthy, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated and matter remitted to the County Court of SullivanCounty for further proceedings not inconsistent with this Court's decision.