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