WORDEN, ROBERT L., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
153
KA 08-02528
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ROBERT L. WORDEN, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NICOLE FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered September 2, 2008. The judgment convicted defendant,
upon his plea of guilty, of rape in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
following his plea of guilty, of rape in the third degree (Penal Law §
130.25 [3]). Defendant contends that County Court erred in denying
his motion to withdraw his plea because he did not understand the
nature of the charge to which he pleaded guilty and thus the plea was
not knowingly, voluntarily and intelligently entered. That ground in
support of the motion to withdraw the plea is raised for the first
time on appeal, however, and thus is not preserved for our review (see
CPL 470.05 [2]). Rather, defendant’s motion was based on a purported
recantation by the victim. We conclude that the court properly denied
defendant’s motion to withdraw his plea on that ground because, as the
court properly noted, recantations are inherently unreliable (see
People v Nichols, 302 AD2d 954, lv denied 99 NY2d 657). In any event,
the court further noted that the victim’s recantation was “equivocal
at best.” To the extent that defendant may be deemed to challenge the
factual sufficiency of the plea allocution, we note that he had failed
to preserve his contention for our review (see People v Lopez, 71 NY2d
662, 665), and this case does not fall within the rare exception to
the preservation requirement (see id. at 666). Furthermore, to the
extent that defendant’s further contention that he was denied
effective assistance of counsel survives his plea of guilty (see
People v Carmody, 90 AD3d 1526), we conclude that it lacks merit (see
-2- 153
KA 08-02528
generally People v Ford, 86 NY2d 397, 404).
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court