Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 23, 2012
Tom, J.P., Mazzarelli, Moskowitz, Renwick, Abdus-Salaam, JJ.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered September 8, 2010, convicting defendant upon his plea of guilty, of rape in the second degree, and sentencing him, as a second felony offender, to a term of four years, affirmed.
Defendant encountered the victim, who was intoxicated, on the sidewalk outside a bar in upper Manhattan in the early morning hours of February 4, 2008. The victim could only recall walking home several hours later and realizing that her bag, keys and cell phone were missing. The superintendent of her building let her into her apartment, where she slept until midday. Later that day, based on her physical condition, she realized she had been forcibly raped and went to Metropolitan Hospital, where staff examined her and used a rape kit to extract DNA evidence.
On May 12, 2008, the results of DNA testing from the kit found a match to defendant, a known sex offender. Defendant was also in possession of the victim's cell phone. He initially denied that he recognized the victim, when police showed him her photograph. However, after his arrest, he admitted that he had helped her up and taken her to the lobby of a nearby building where he had sex with her.
Defendant pleaded guilty to rape in the second degree [FN1]. Penal Law § 130.30(2) provides that a person is guilty of rape in the second degree when he "engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated." A person is "mentally incapacitated" when she is "rendered temporarily incapable of appraising or controlling [her] conduct owing to the influence of a narcotic or intoxicating substance administered to [her] without [her] consent" (Penal Law § 130.00).
During his plea allocution, defendant agreed that on February 4, 2008, he encountered the victim who was "in an intoxicated state." The court asked him to describe what happened, and he said, "[s]he was sitting there on the side and we started talking. And she walked with me down to the Projects, and that's where we had sex at, and smoked marijuana and had sex there." The court stated, "I would not accept the plea on that basis. That would not be a crime." Defendant added, "She was drunk. I guided her into the Projects and had sex with her." The court then asked further: "THE COURT: Okay. Is it true, sir, that you knew she was too drunk to really make a decision about whether she did or did not want to have sex? "DEFENDANT: Yes.
*** "THE COURT: You could see she was mentally incapacitated apparently from drinking, is that right? "DEFENDANT: Yes."
Defendant confirmed that he nevertheless "went ahead and had sexual intercourse with her." He further confirmed that he was pleading guilty because he was guilty of the charge. Defendant was arraigned as a second felony offender and certified as a sex offender.
Defendant now seeks to have his plea set aside. He argues that his plea violated his constitutional right to due process because it was not entered knowingly, intelligently and voluntarily. More specifically, he maintains that the allocution negated a key element of the offense of second degree rape, that the victim was "mentally incapacitated," because the allocution did not establish that the victim became intoxicated involuntarily.
Contrary to defendant's claim and the dissent's focus on an "isolated portion" (People v Seeber, 4 NY3d 780, 781 ) of the allocution, defendant's plea did not negate the "mentally incapacitated" element of rape in the second degree. "[M]erely showing that the defendant did not expressly admit a particular element of the crime in the factual allocution is not sufficient, by itself, to raise a constitutional claim" (People v Moore, 71 NY2d 1002, 1005 ; see also People v Lopez, 71 NY2d 662, 666 n 2 ). Rather, "all of the circumstances surrounding the plea must be considered to determine whether the defendant understood the nature of the charges against him" (People v Moore, 71 NY2d at 1006).
Here, the allocution's failure to address how the victim became intoxicated does not warrant vacatur of the plea. Indeed, "all of the circumstances surrounding the plea" demonstrated that defendant "understood the nature of the charges against him" (People v Moore, 71 NY2d 1002, 1005 ). Defendant's extensive experience with the criminal justice system, the favorable terms of the plea bargain, the allocution itself and the protracted history of this case -- including defendant's prior plea -- all indicate that defendant entered his plea voluntarily, knowingly and intelligently (see People v Seeber, 4 NY3d at 780). Although the crime to which defendant pleaded guilty is not a lesser included offense of the first-degree rape counts in the indictment, it shared common elements with those counts, it involved the same victim and "essentially the same factual circumstances" (People v Hahn, 10 AD3d 809, ...