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Plea Allocution Negated Essential Element of Offense/Error, though Unpreserved, Required Reversal

The Court of Appeals reversed defendant’s conviction because the plea colloquy negated an essential element of the offense.  The defendant pled guilty to rape 3rd (Penal Law 130.25(3)), the so-called “date rape” statute. The statute requires a lack of consent by the victim, not a lack of capacity to consent (caused by drugs, for example). The plea allocution indicated only a lack of capacity to consent.  Even though the error was not preserved, the Court of Appeals determined the case fell within the narrow exception to the preservation requirement recognized in Lopez (71 NY2d at 666) where the court fails to ensure the guilty plea is knowing and voluntary:

Penal Law § 130.25 (3) addresses “so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent” … .  Accordingly, the statutory provision requires the victim to have “clearly expresse[d] an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting” … .

Despite the statute’s plain terms, questions posed by the prosecutor during the brief colloquy indicate an intention to elicit from defendant that the complainant was unable to consent because she was incapacitated.  Moreover, the court’s single query during the factual allocution suggests that the court similarly misunderstood that key element of the crime.  In an apparent attempt to establish a causal relationship between thr complainant’s incapacity and her lack of consent, the court asked defendant, “[a]nd [the complainant] didn’t give you consent because she took too much medication and she has a mental illness, correct?”  By answering in the affirmative, defendant unequivocally negated an element of the crime to which he was pleading guilty.  People v Worden, 203, CtApp 11-21-13

 

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