Opinion
KA 01-01540
March 21, 2003.
Appeal from a judgment of Wyoming County Court (Griffith, J.), entered July 6, 2000, convicting defendant upon his plea of guilty of rape in the first degree.
NORMAN P. EFFMAN, PUBLIC DEFENDER, ATTICA (JERRY M. ADER OF COUNSEL), FOR DEFENDANT-APPELLANT.
GERALD L. STOUT, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HURLBUTT, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35). Defendant contends that County Court failed to conduct the requisite further inquiry to ensure that his plea was knowingly, voluntarily, and intelligently entered when his statements during the factual allocution raised a possible defense to rape by forcible compulsion. As a preliminary matter, we note that the contention of defendant survives his valid waiver of the right to appeal and falls within the rare case exception to the preservation doctrine (see People v. Moore [Demetrius], 300 A.D.2d 1085 [Dec. 30, 2002]; People v. Powell, 278 A.D.2d 848). Nevertheless, we reject defendant's contention. When defendant initially stated during the plea colloquy that there was no forcible compulsion and no sexual intercourse on the alleged date of the crime to which he was pleading guilty, the court conducted the necessary "further inquiry" (People v. Lopez, 71 N.Y.2d 662, 666), and defendant acknowledged that he had sexual intercourse with the victim on that date without her consent and by use of forcible compulsion (see People v. Haight, 294 A.D.2d 659, lv denied 99 N.Y.2d 536; People v. Tumminia, 272 A.D.2d 634, lv denied 95 N.Y.2d 939).