People v. Elting

Appellate Division of the Supreme Court of New York

People v. Elting

2017 NY Slip Op 4456, 151 A.D.3d 739, 53 N.Y.S.3d 550

Appellate Division of the Supreme Court of the State of New York·Decided June 7, 2017·No. 2015-05086·Published·Cited by 6 cases

Opinion

Appeal by the defendant from a judgment of the County *740 Court, Dutchess County (Greller, J.), rendered June 10, 2015, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. .

Ordered that the judgment is affirmed.

The defendant’s contention that his plea of guilty was not knowing, voluntary, or intelligent because the allocution was factually insufficient is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v Telfair, 144 AD3d 712, 712 [2016]; People v Ballard, 112 AD3d 731, 732 [2013]). Moreover, the exception to the preservation requirement does not apply here because the defendant’s plea allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Sanchez, 122 AD3d 646, 646 [2014]; People v McKenzie, 98 AD3d 749, 750 [2012]; People v Johnson, 73 AD3d 951, 951 [2010]). In any event, the record establishes that the plea was entered into knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). Further, inasmuch as the defendant pleaded guilty to a lesser crime than the crime charged in the indictment, and since the allocution establishes that the defendant understood the charges against him, a factual basis for the plea was unnecessary (see People v Johnson, 23 NY3d 973, 975 [2014]; People v Moore, 71 NY2d 1002, 1006 [1988]; People v Sanchez, 122 AD3d at 647; People v McKenzie, 98 AD3d at 750).

Contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Mastro, J.P., Leventhal, Austin and Roman, JJ., concur.

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Appeal by the defendant from a judgment of the County *740 Court, Dutchess County (Greller, J.), rendered June 10, 2015, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. .

Ordered that the judgment is affirmed.

The defendant’s contention that his plea of guilty was not knowing, voluntary, or intelligent because the allocution was factually insufficient is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v Telfair, 144 AD3d 712, 712 [2016]; People v Ballard, 112 AD3d 731, 732 [2013]). Moreover, the exception to the preservation requirement does not apply here because the defendant’s plea allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Sanchez, 122 AD3d 646, 646 [2014]; People v McKenzie, 98 AD3d 749, 750 [2012]; People v Johnson, 73 AD3d 951, 951 [2010]). In any event, the record establishes that the plea was entered into knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). Further, inasmuch as the defendant pleaded guilty to a lesser crime than the crime charged in the indictment, and since the allocution establishes that the defendant understood the charges against him, a factual basis for the plea was unnecessary (see People v Johnson, 23 NY3d 973, 975 [2014]; People v Moore, 71 NY2d 1002, 1006 [1988]; People v Sanchez, 122 AD3d at 647; People v McKenzie, 98 AD3d at 750).

Contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Mastro, J.P., Leventhal, Austin and Roman, JJ., concur.

People v. Elting, 2017 NY Slip Op 4456, 151 A.D.3d 739, 53 N.Y.S.3d 550 (N.Y. Ct. App. 2017).

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