                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      106805
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

IZMEHEL MARRERO,
                    Appellant.
________________________________


Calendar Date:   June 3, 2015

Before:   Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

                             __________


     Eric K. Schillinger, East Greenbush, for appellant.

      Joel E. Abelove, District Attorney, Troy (Vincent J.
O'Neill of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the County Court of Rensselaer
County (Ceresia, J.), rendered February 21, 2013, convicting
defendant upon his plea of guilty of the crime of sexual abuse in
the first degree.

      In satisfaction of a three-count indictment, defendant
pleaded guilty to the reduced charge of sexual abuse in the first
degree and waived his right to appeal. He was thereafter
sentenced as a second felony offender to the agreed-upon prison
term of five years followed by 10 years of postrelease
supervision. Defendant appeals, arguing that his plea was not
knowingly, voluntarily and intelligently entered.

     Although defendant waived his right to appeal and did not
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preserve his challenge to the voluntariness of his plea by making
an appropriate postallocution motion, the narrow exception to the
preservation rule was triggered here inasmuch as the allocution
casts significant doubt upon his guilt (see People v Lopez, 71
NY2d 662, 666 [1988]; People v Morehouse, 109 AD3d 1022, 1022
[2013]; People v Pagan, 36 AD3d 1163, 1164 [2007]). As relevant
here, a person is guilty of sexual abuse in the first degree when
he or she subjects another to sexual contact by forcible
compulsion (see Penal Law § 130.65 [1]).

      During the plea colloquy, County Court required that
defendant provide a recitation of the underlying facts so that
the court could assure itself that defendant's conduct satisfied
the elements of the crime to which he was pleading. In response
to the court's questioning, defendant admitted that he had
subjected the victim to sexual contact by "grabb[ing] her
breasts."1 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 (see
People v Goldstein, 12 NY3d 295, 301 [2009]), we cannot
countenance a conviction that rests upon a misconception of the
key element of forcible compulsion (see People v Johnson, 23 NY3d
973, 975-976 [2014]; People v Worden, 22 NY3d 982, 985 [2013];


    1
        Evidence that defendant grabbed the victim's breasts,
without more, is insufficient to establish the element of
forcible compulsion (see People v Fuller, 50 AD3d 1171, 1174-1175
[2008], lv denied 11 NY3d 788 [2008]).
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see also People v Williams, 123 AD3d 240, 243-244 [2014]).
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 (see People v Johnson, 23 NY3d at
976; People v Lopez, 71 NY2d at 666; People v Castetter, 64 AD3d
1007, 1008-1009 [2009]; People v Ramirez, 42 AD3d 671, 673
[2007]; People v Pagan, 36 AD3d at 1164-1165; People v Makas, 273
AD2d 510, 511-512 [2000]).

     McCarthy, Egan Jr. and Rose, JJ., concur.



      ORDERED that the judgment is reversed, on the law, plea
vacated and matter remitted to the County Court of Rensselaer
County for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
