        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

960
KA 11-00286
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN A. DUKES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered August 17, 2010. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
degree and criminal sexual act in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated and the matter is
remitted to Supreme Court, Monroe County, for further proceedings on
the indictment.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of robbery in the first degree (Penal Law §
160.15 [4]) and criminal sexual act in the first degree (§ 130.50
[1]). We agree with defendant that Supreme Court erred in accepting
his plea without ensuring that he was making an informed decision to
waive a potential affirmative defense to the robbery charge. We
therefore reverse the judgment of conviction, vacate the plea and
remit the matter to Supreme Court for further proceedings on the
indictment.

     The indictment alleged, inter alia, that defendant and an
accomplice robbed a store in Rochester by displaying what appeared to
be a firearm. At the outset of the plea colloquy, defense counsel
stated that, although defendant told the police that he used a .45
caliber handgun in the robbery, the weapon he had used was actually a
BB gun. Defense counsel further stated, however, that defendant would
waive the affirmative defense set forth in Penal Law § 160.15 (4),
which applies where the weapon used in the robbery “was not a loaded
weapon from which a shot, readily capable of producing death or other
serious physical injury, could be discharged.” During the ensuing
plea colloquy, defendant stated that the gun he had used was a BB gun
that looked like a revolver, not a .45 caliber handgun as he had told
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                                                         KA 11-00286

the police. At the end of the plea colloquy, defense counsel, in
response to concerns expressed by the prosecutor, again stated that
defendant was waiving the affirmative defense set forth in section
160.15 (4). The court then accepted defendant’s plea.

     Although “no catechism is required in connection with the
acceptance of a plea” (People v Goldstein, 12 NY3d 295, 301), it is
well established that, “where the defendant’s recitation of the facts
underlying the crime pleaded to clearly casts significant doubt upon
the defendant’s guilt or otherwise calls into question the
voluntariness of the plea, . . . the trial court has a duty to inquire
further to ensure that [the] defendant’s guilty plea is knowing and
voluntary” (People v Lopez, 71 NY2d 662, 666; see People v Serrano, 15
NY2d 304, 308-309). “Where the court fails in this duty and accepts
the plea without further inquiry, the defendant may challenge the
sufficiency of the allocution on direct appeal,” despite having failed
to make that challenge in a “postallocution motion” directed to the
plea court (Lopez, 71 NY2d at 666).

     Here, we conclude that reversal is mandated by the reasoning of
People v Mox (20 NY3d 936). In that case, the defendant, who was
offered the opportunity to plead guilty to a reduced charge of
manslaughter in the first degree, stated during the plea colloquy that
he was hearing voices on the day of the homicide, was in a psychotic
state, and had not taken his prescribed medication for several days.
County Court nevertheless accepted the defendant’s plea. Immediately
after the plea was entered, defense counsel stated that she had
discussed with the defendant the potential defense of not guilty by
reason of mental disease or defect, and that the defendant was willing
to waive that defense in order to accept the People’s plea offer. The
court then asked the defendant if that was correct, and the defendant
answered in the affirmative. The Court of Appeals vacated the plea,
concluding that County Court had a duty to “inquire further into
whether defendant’s decision to waive a potentially viable insanity
defense was an informed one such that his guilty plea was knowing and
voluntary” (Mox, 20 NY3d at 939). According to the Court of Appeals,
County Court’s “single question to defendant verifying that he
discussed that defense with his attorney and opted not to assert it
was insufficient to meet that obligation” (id.)

     Here, as noted, defendant made statements during the plea
colloquy indicating that he had a potentially viable affirmative
defense to the charge of robbery in the first degree. Thus, the court
was obligated under the holding of Mox and the rule set forth in Lopez
to ensure that defendant was aware of that defense and that he was
knowingly and voluntarily waiving it. Although defense counsel stated
that he had discussed the potential defense with defendant and that
defendant was waiving it in order to accept the plea offer, the court
did not ask any questions of defendant regarding the potential
defense. Thus, the facts of the instant case present an even stronger
basis for vacatur of the plea than those in Mox, where the plea court
took the additional step—one not taken here—of asking the defendant
whether it was true that he had discussed the applicable affirmative
defense with his attorney and was willing to waive it (see Mox, 20
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                                                         KA 11-00286

NY3d at 939; see also People v Grason, 107 AD3d 1015, 1016).

     In light of our determination, we do not address defendant’s
remaining contention.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
