People v. Robert L. Worden


AD4 order dated January 31, 2012, affirming judgment of conviction. Decision below: 91 A.D.3d 1340, 937 N.Y.S.2d 793. Pigott, J., granted leave June 5, 2012.

ISSUES PRESENTED: (1) The summary denial of defendant’s motion to withdraw his guilty plea based on the complainant’s recantation. (2) The voluntariness of the guilty plea. (3) Effective assistance of counsel. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)

Issues before the Court: Whether the guilty plea’s factual allocution was sufficient to support the conviction; whether the Lopez exception (People v. Lopez, 71 NY2d 662 [1998]) to the preservation requirement applies here because defendant’s allocution negated an essential element of the crime.


Held: The factual allocution was insufficient and the Lopez exception applies.


CAL Observes: This is a classic application of the Lopez exception.  The defendant was pleading guilty to one count of third-degree rape under PL Sec. 130.25(3), the so-called “date rape” crime, which requires an express lack of consent.  In the factual allocution, however, the defendant essentially stated that the complainant was unable to consent do to incapacity, i.e. she was tired and “out of it.”.  That explanation was clearly just fine with the court and the lawyers, reflecting their general misunderstanding of the statute’s consent element. That “unusual scenario” fell “squarely within the Lopez exception” to the preservation requirement.