The People of the State of New York, Respondent, v. Robert M. Irvine, Jr., Appellant

The People of the State of New York, Respondent, v Robert M. Irvine, Jr., Appellant. [756 NYS2d 809] [MAJORITY] —Appeal from a judgment of Wyoming County Court (Griffith, J.), entered July 6, 2000, convicting defendant upon his plea of guilty of rape in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35 [1]). Defendant contends that County Court failed to conduct the requisite further inquiry to ensure that his plea was knowingly, voluntarily, and intelligently entered when his statements during the factual allocution raised a possible defense to rape by forcible compulsion. As a preliminary matter, we note that the contention of defendant survives his valid waiver of the right to appeal and falls within the rare case exception to the preservation doctrine (see People v Moore, 300 AD2d 1085 [2002]; People v Powell, 278 AD2d 848 [2000]). Nevertheless, we reject defendant’s contention. When defendant initially stated during the plea colloquy that there was no forcible compulsion and no sexual intercourse on the alleged date of the crime to which he was pleading guilty, the court conducted the necessary “further inquiry” (People v Lopez, 71 NY2d 662, 666 [1988]), and defendant acknowledged that he had sexual intercourse with the victim on that date without her consent and by use of forcible compulsion (see People v Haight, 294 AD2d 659 [2002], lv denied 99 NY2d 536 [2002]; People v Tumminia, 272 AD2d 634 [2000], lv denied 95 NY2d 939 [2000]). Present — Hurlbutt, J.P., Kehoe, Gorski, Lawton and Hayes, JJ.