You are here: / / DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND...
,

DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s plea, determined that the court should have conducted further inquiry after defendant, during the plea colloquy, made a statement about the age of the victim which negated an element of the crime. The error triggered the narrow exception to the preservation requirement:

Defendant contends that the plea must be vacated because he negated an essential element of the crime at sentencing. Although the record does not reflect that defendant made an appropriate postallocution motion in order to preserve this issue for our review, we find that a statement made by defendant at sentencing cast doubt upon his guilt and, therefore, triggered “the narrow exception to the preservation requirement and impos[ed] a duty upon County Court ‘to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary'” … . “[S]tatements made by a defendant that negate an element of the crime to which a plea has been entered . . . or otherwise suggest an involuntary plea require[s] the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

At sentencing, defendant stated that the sexual conduct started when the victim was 13 years old, not 12 years old. Such statement by defendant negated the element of predatory sexual assault against a child in the first degree that requires that the victim be under the age of 13 (see Penal Law § 130.96). Notwithstanding defendant’s statement, County Court did not make any further inquiry or give defendant an opportunity to withdraw his plea prior to proceeding to sentencing. People v Brassard, 2018 NY Slip Op 07978, Third Dept 11-21-18

CRIMINAL LAW (DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT))/PLEA COLLOQUY  (DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT))

You might also like
PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).
CLAIMANT PARTICIPATED IN THE CLEAN UP AFTER THE WORLD TRADE CENTER ATTACK ON 9-11 AND WAS THEREFORE ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER ARTICLE 8-A (THIRD DEPT).
Resentencing to a Term of Imprisonment with a Maximum Greater than the Initial Sentence Violates Double Jeopardy Principles
APPELLANT COULD NOT PURSUE COUNTERCLAIMS AND CROSS-CLAIMS WHICH WERE NOT LISTED AS ASSETS IN APPELLANT’S BANKRUPTCY PETITION; THE CAUSES OF ACTION REMAIN VESTED IN THE BANKRUPTCY ESTATE.
DEFENSE COUNSEL SUBMITTED EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL BUT COUNTY COURT DID NOT RULE ON IT; MATTER REMITTED FOR FINDINGS OF FACT AND CONCLUSIONS (THIRD DEPT).
HERE FATHER MOVED TO DISMISS MOTHER’S PETITION TO MODIFY CHILD SUPPORT AT THE CLOSE OF MOTHER’S PROOF; AT THAT STAGE OF THE PROCEEDINGS THE COURT MUST ACCEPT PETITIONER’S EVIDENCE AS TRUE AND RESOLVE ALL CREDIBILITY QUESTIONS IN PETITIONER’S FAVOR; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).
CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).
Public Access Easement to Recreation Area Granted; Public Hearing Not Required

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS,... UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME...