People v. Banks

• Decision Date: 24 March 2016
• Docket Number: 106259.
• Citation: 2016 N.Y. Slip Op. 02127,137 A.D.3d 1458,29 N.Y.S.3d 73
• Parties: The PEOPLE of the State of New York, Respondent, v. Cory BANKS, Appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1458

29 N.Y.S.3d 73

2016 N.Y. Slip Op. 02127

The PEOPLE of the State of New York, Respondent,

v.Cory BANKS, Appellant.

106259.

Supreme Court, Appellate Division, Third Department, New York.

March 24, 2016.

David E. Woodin, Catskill, for appellant, and appellant pro se.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.

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 crime of rape in the second degree.

Defendant was indicted on one count of rape in the first degree and one count of rape in the third degree stemming from an incident in which he was alleged to have forced a coworker 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 of the indictment and waived his right to appeal in exchange for a sentencing commitment of five years in prison with up to 15 years of postrelease supervision. In the course of the plea allocution, County Court led defendant in a factual recitation and also advised him that, as a condition of the agreement, it expected him to “respond truthfully and take responsibility for engaging in non-consensual intercourse with the [victim]” during his pre-sentencing probation interview. Prior to sentencing, defendant twice moved to withdraw 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 that defendant had failed to take responsibility for engaging in nonconsensual sex with the victim at his probation interview, sentenced him as a second felony offender to an enhanced sentence of seven years in prison to be followed by 15 years of postrelease supervision. 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 an appropriate post-allocution motion (see People v. Lacroix, 133 A.D.3d 1095, 1096, 20 N.Y.S.3d 687 [2015] ; People v. White, 85 A.D.3d 1493, 1493, 925 N.Y.S.2d 915 [2011] ). The crime to which defendant pleaded was not a lesser included offense of an offense charged in the indictment, either by virtue of its elements or by operation of CPL 220.20, which expands the definition of lesser included offenses for plea purposes. However, as defendant'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 the two recognized “narrow exceptions” to the restraints on permissible pleas contained in CPL 220.10 (People v. Johnson, 89 N.Y.2d 905, 908, 653 N.Y.S.2d 265, 675 N.E.2d 1217 [1996] ).

Where, as here, a defendant pleads to a lesser crime as part of a plea bargain, the court is not required to engage in a factual recitation in order to establish the elements of the crime (see People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366 [1972] ; People v. Harris, 125 A.D.3d 1506, 1507, 2 N.Y.S.3d 309 [2015], lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 [2015] ; People v. McQueen, 57 A.D.3d 1103, 1103, 868 N.Y.S.2d 421 [2008], lv. denied 12 N.Y.3d 760, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ), and, in fact, “under such circumstances defendants can even plead guilty to crimes that do not exist” (People v. Johnson, 23 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 [2014] ). In this instance, although not required to do so, County Court nevertheless sought to elicit the details of the crime from defendant prior to accepting his plea and led him in a factual recitation. The questions posed by the court during the allocution appeared to be designed to elicit from defendant facts supporting the elements of rape in the third degree, a crime which had been charged in the indictment, but was to be dismissed as part of the plea to rape in the second degree; notably, rape in the third degree includes the element that the victim's “words and acts” demonstrated that he or she did not consent to sexual intercourse with the defendant (Penal Law § 130.05[2][d] ; see Penal Law § 130.25 ). In response to the court's inquiries, defendant admitted that ...