People v Odu (2022 NY Slip Op 07266) (2023)

 The People of the State of New York,Respondent,
v
Abdul-Salaam O. Odu, Appellant.

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.

Patrick A. Perfetti, District Attorney, Cortland, for respondent.

Lynch, J. Appeal from two judgments of the County Court of Cortland County (JulieA. Campbell, J.), rendered June 27, 2019, convicting defendant upon his pleas of guiltyof the crimes of rape in the third degree and criminal contempt in the first degree.

Defendant was charged in a seven-count indictment with robbery in the third degree,criminal contempt in the first degree and other crimes stemming from his June 2, 2018theft of property from victim A, a person in whose favor a no-contact order of protectionwas in place. Defendant was thereafter charged by felony complaint with rape in the firstdegree, based upon the allegation that he subjected victim B to sexual intercourse byforcible compulsion. Pursuant to a plea agreement that resolved all charges, defendant,advised by counsel, waived indictment on the charge in the felony complaint and agreedto be prosecuted by a superior court information (hereinafter SCI) for rape in the thirddegree as a lesser included offense of rape in the first degree; he thereafter pleaded guiltyas charged by the SCI pursuant to an affidavit of stipulated facts. Defendant also pleadedguilty to criminal contempt in the first degree as charged in count 3 of the indictment, insatisfaction of all charges therein. As part of the global disposition, defendant wasrequired to waive his right to appeal. Defendant, self-represented, moved to withdraw hisguilty plea based upon claims of ineffective assistance of counsel and coercion, whichthe People opposed and County Court denied. In accord with the plea agreement, thecourt sentenced defendant to concurrent prison terms of three years followed by threeyears of postrelease supervision on the conviction of rape in the third degree and 1 to 3years on the conviction of criminal contempt in the first degree. Defendant appeals.

Defendant primarily contends that the waiver of indictment and SCI werejurisdictionally defective.^[FN1] A waiver of indictment and SCI mayonly include offenses for which a defendant was held for action of a grand jury oroffenses properly joined therewith (see CPL 195.10 [1] [a]; 195.20, 200.15; People v Pierce, 14 NY3d564, 568-574 [2010]; People v Menchetti, 76 NY2d 473, 477 [1990] [notingthat "a defendant is held for the action of the (g)rand (j)ury on the lesser includedoffenses as well as a greater offense charged in the felony complaint"]). "A defendantmay waive indictment and plead guilty to an SCI that names a different offense from thatcharged in the felony complaint only when the crime named in the SCI is a lesserincluded offense of the original charge" (People v McCall, 194 AD3d 1197, 1197 [3d Dept 2021][internal quotation marks, brackets and citation omitted]; see People v Pierce, 14NY3d at 568). Here, the offense named in the waiver of indictment and SCI to whichdefendant pleaded guilty was rape in the third degree, which was not charged in thefelony complaint and, he argues, is not a lesser included offense of rape in the first [*2]degree.

A lesser included offense "is an offense of lesser grade or degree" for which ashowing is made that, "in all circumstances, not only in those presented in the particularcase, it is impossible to commit the greater crime without concomitantly, by the sameconduct, committing the lesser offense," a determination made "by a comparativeexamination of the statutes defining the two crimes" (People v Glover, 57 NY2d61, 63-64 [1982]; see CPL 1.20 [37]; People v Rivera, 23 NY3d 112, 120-121 [2014]; Peoplev Van Norstrand, 85 NY2d 131, 135 [1995]). As charged in the felony complaint,rape in the first degree requires sexual intercourse "[b]y forcible compulsion" (Penal Law§ 130.35 [1]), which "means to compel by either . . . use ofphysical force . . . or . . . a threat, express or implied, whichplaces a person in fear of immediate death or physical injury to himself, herself oranother person, or in fear that he, she or another person will immediately be kidnapped"(Penal Law § 130.00 [8]). Proof of forcible compulsion also satisfies the"lack of consent" element included not just in first-degree rape but in every offensedefined under Penal Law article 130, "[w]hether or not specifically stated" (Penal Law§ 130.05 [1]; see Penal Law § 130.05 [2] [a]).

Although the felony complaint did not specify which definition of forciblecompulsion was being relied upon, it indicated that defendant "forcibly engage[d]" insexual intercourse with victim B "while repeatedly being told to stop," during which she"kicked at" defendant, who "compel[ed]" her to have sexual intercourse. As defendantwas not alleged to have threatened victim B, the relevant conduct to be analyzed is sexualintercourse compelled by the "use of physical force" (Penal Law § 130.00[8] [a]; see People v Miller,6 NY3d 295, 302 [2006]).

By distinction, rape in the third degree as charged in the SCI requires sexualintercourse without the victim's consent where "lack of consent is by reason of somefactor other than incapacity to consent" (Penal Law § 130.25 [3]). As ageneral matter, this means that lack of consent can result either from forcible compulsionor where "the victim clearly expressed that he or she did not consent to engage in suchact, and a reasonable person in the actor's situation would have understood such person'swords and acts as an expression of lack of consent to such act under all thecircumstances" (Penal Law § 130.05 [2] [d] see Penal Law§ 130.05 [2] [a]). Here, however, the stipulated facts alleged the victim'sexpress nonconsent, explaining that the People agreed to the lesser charge because"defendant and [victim B] had previously been involved in a relationship and had hadconsensual relations on more than one occasion." The People conceded "that the elementof physical compulsion required by [Penal Law §] 130.35 (1) may not be present inthis case and would therefore be difficult . . . to prove at trial beyond areasonable doubt." Defendant affirmed [*3]that he "hadintercourse with [victim B] even though she . . . expressed that she did notconsent," and that "under all of the circumstances that a reasonable person in. . . defendant's situation would have understood [victim B's] words and actsas an expression of lack of consent" (compare Penal Law § 130.05[2] [d]). Accordingly, instead of forcible compulsion, the SCI invoked the otherlack-of-consent theory available under Penal Law § 130.25 (3), i.e., expressnon-consent by words or actions of the victim (see Penal Law§ 130.05 [2] [d]), and the SCI and waiver of indictment chargedthird-degree rape under that theory.

Although we acknowledge that "it is unnecessary to forcibly compel another toengage in sexual acts unless that person is an unwilling participant" (People vWilliams, 81 NY2d 303, 317 [1993]), it is nevertheless theoretically possible for oneto use physical force to compel a victim to have sexual intercourse where the victim didnot clearly express nonconsent (cf. People v Evans, 79 AD3d 454, 455 [1st Dept 2010],lv denied 17 NY3d 795 [2011]; see generally People v Miller, 6 NY3d at303; People v Glover, 57 NY2d at 63).^[FN2] That is, one who commits the greatercrime of rape in the first degree by forcible compulsion through physical force does not,by the same conduct, necessarily commit the lesser offense of rape in the third degree inwhich the victim expressly communicated his or her non-consent (see Penal Law§§ 130.00 [8] [a]; 130.05 [2] [d]; 130.25 [3]; 130.35 [1]).Consequently, rape in the third degree as charged in the SCI to which defendant pleadedguilty is not a lesser included offense of rape in the first degree as charged in the felonycomplaint (see People vDiego, 172 AD3d 1776, 1777 [3d Dept 2019]; People v Hulstrunk, 163 AD3d1177, 1178 [3d Dept 2018]).

We further note that the Sexual Assault Reform Act (L 2000, ch 1), on which theparties and County Court relied in fashioning this plea agreement and stipulation of facts,does not demand a different result. The Act amended CPL 300.50 (6) to declare that, inthe context of requests for jury instructions, rape in the third degree is not a lesserincluded offense of rape in the first degree, thereby omitting the impossibility analysisaltogether (compare CPL 1.20 [37]; 220.20 [1]). Instead, third-degree rape maybe submitted to a jury as a lesser included offense "when (i) there is a reasonable view ofthe evidence which would support a finding that the defendant committed such lesseroffense but did not commit the greater offense, and (ii) both parties consent to itssubmission" (CPL 300.50 [6]; see L 2000, ch 1, § 46; People v Bonich, 208 AD3d679, 681 [2d Dept 2022], lv denied 39 NY3d 939 [2022]; People v Stanton, 200 AD3d1307, 1309-1310 [3d Dept 2021], lv denied 38 NY3d 954 [2022]; People v Turner, 197 AD3d997, 998 [4th Dept 2021], lv denied 37 NY3d 1061 [2021]). However, thestatute expressly applies to jury instructions and does not by its terms preclude [*4]a guilty plea to rape in the third degree where it is properlycharged as a lesser included offense of rape in the first degree, nor does it permit entry ofsuch a plea to an SCI where it is theoretically possible for the alleged conduct to render adefendant guilty of the greater crime but not the lesser (see CPL 1.20 [37];220.20 [1]; 300.50 [1], [2], [6]).^[FN3]

Given that the SCI here did not contain either an offense charged in the underlyingfelony complaint or a lesser included offense thereof, the SCI upon which defendant'splea was based was jurisdictionally defective; thus, his guilty plea to rape in the thirddegree "must be vacated and the SCI dismissed and, if warranted, further proceedings onthe felony complaint may be undertaken" (People v McCall, 194 AD3d at 1198).Furthermore, defendant's conviction was part of a global disposition whereby he alsopleaded guilty to an additional charge of criminal contempt in the first degree insatisfaction of an indictment with the explicit promise of concurrent sentences, a promisethat can no longer be kept and, thus, his plea in satisfaction of the indictment must alsobe vacated and the indictment reinstated (see People v Titus, 171 AD3d 1257, 1257-1258 [3d Dept2019]; People v Price, 113AD3d 883, 884-885 [3d Dept 2014]; see also People v Rowland, 8 NY3d 342, 345 [2007]; People v Pichardo, 1 NY3d126, 129-130 [2003]). In light of this conclusion, we need not address defendant'sremaining claims.

Garry, P.J., Reynolds Fitzgerald, Ceresia and McShan, JJ., concur. Ordered that thejudgments are reversed, on the law, superior court information dismissed and matterremitted to the County Court of Cortland County for further proceedings not inconsistentwith this Court's decision.

Footnotes

Footnote 1:Defendant's claimsregarding the infringement of his constitutional right to be prosecuted only by indictment(NY Const, art I, § 6) and jurisdictional defects in the waiver of indictmentand SCI need not be preserved and were not waived by his guilty plea or waiver ofappeal (see People v Pierce,14 NY3d 564, 570 n 2 [2010]; People v Zanghi, 79 NY2d 815, 817 [1991];People v Coss, 178 AD3d25, 27 [3d Dept 2019]).

Footnote 2:We note in passing thatthe Legislature long ago amended the statutory definition of "forcible compulsion" toomit any reference to a victim's resistance (see Penal Law § 130.00[former (8)]; L 1982, ch 560; People v Burgess, 107 AD2d 703, 704 [2d Dept1985]). Thus, the People need not prove that a victim expressed nonconsent in aprosecution of first-degree rape premised on physical force.

Footnote 3:We are aware of noauthority applying CPL 300.50 (6) to waivers of indictments and guilty pleas to SCIs.