Judge’s Flawed Question During Plea Colloquy Required Vacation of the Plea

The Third Department determined County Court’s equating a lack of consent (re: sexual abuse) with the “forcible compulsion” element of the offense required vacation of the plea:

In response to the court’s questioning, defendant admitted that he had subjected the victim to sexual contact by “grabb[ing] her breasts.” County Court then inquired of defendant, “did you do that by forcible compulsion, in other words, without her consent or without her authority?” Forcible compulsion, however, is defined as compelling another “by either [] use of physical force; or [] a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8]). Defendant answered in the affirmative, and County Court accepted his guilty plea without conducting any further inquiry into the facts or readdressing the element of forcible compulsion.

By equating forcible compulsion with lack of consent, County Court misdefined an essential element of the crime to which defendant was pleading. While defendant was not required to recite facts establishing every element of the crime … , we cannot countenance a conviction that rests upon a misconception of the key element of forcible compulsion … . Because the record fails to establish that defendant understood the nature of the charge or that his guilty plea was knowingly and intelligently entered, his plea must be vacated and the matter remitted to County Court … . People v Marrero, 2015 NY Slip Op 05974, 3rd Dept 7-9-15