People v. Pitts

305 A.D.2d 1097, 759 N.Y.S.2d 720

Opinion

—Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered November 29, 2000, convicting defendant upon his plea of guilty of assault in the second 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 assault in the second degree (Penal Law § 120.05 [1]). Contrary to the contention of defendant, Supreme Court properly accepted his plea to the lesser crime of assault in the second degree in satisfaction of an indictment charging him with, inter alia, assault in the first degree under section 120.10 (4). While the crime to which defendant pleaded guilty is “technically inconsistent with the crime charged,” it shares common elements and involves the same victim, and thus defendant’s plea falls within one of the “narrow exceptions” to the “statutory guilty plea restrictions of CPL article 220” (People v Johnson, 89 NY2d 905, 907 [1996]; see People v Adams, 57 NY2d 1035, 1038 [1982]). Contrary to the further contention of defendant, the court properly adjudicated him a persistent violent felony offender. Defendant admitted that he had been convicted of three prior violent felony convictions, thus rendering unnecessary any further hearing on the issue (see Penal Law § 70.08 [1] [a]; CPL 400.15 [4]; 400.16 [2]). Present — Green, J.P., Hurlbutt, Scudder, Burns and Hayes, JJ.