People v. Oldham

24 A.D.3d 1289, 805 N.Y.S.2d 903

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Richard C. Kloch, Sr., A.J.), rendered March 19, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third 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 attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [4]). Defendant moved to withdraw his plea on a ground different from that raised on appeal, and thus defendant’s present contention that the plea was not knowing, intelligent and voluntary is not preserved for our review (see People v Mackey, 77 NY2d 846, 847 [1991]; see generally People v Ali, 96 NY2d 840, 841 [2001]). Defendant further contends that Supreme Court erred in failing to make further inquiry concerning a potential defense under Penal Law § 265.20 (a) (3). We reject that contention. Because defendant pleaded guilty to a lesser crime than that charged, a factual basis for the plea was not required (see People v Mc-Corkle, 298 AD2d 848 [2002], lv denied 99 NY2d 561 [2002]). In any event, we note that defendant’s factual recitation did not indicate that defendant had such a potential defense, and thus the court had no duty to make further inquiry into such a defense (see generally People v Lopez, 71 NY2d 662, 666 [1988]). Present—Scudder, J.P., Kehoe, Martoche, Smith and Pine, JJ.