Opinion
06-07-2017
The PEOPLE, etc., respondent, v. Shazique C. ELTING, appellant.
Del Atwell, East Hampton, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
Appeal by the defendant from a judgment of the County 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 A.D.3d 712, 712, 39 N.Y.S.3d 831 ; People v. Ballard, 112 A.D.3d 731, 732, 976 N.Y.S.2d 404 ). 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 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Sanchez, 122 A.D.3d 646, 646, 994 N.Y.S.2d 427 ; People v. McKenzie, 98 A.D.3d 749, 750, 950 N.Y.S.2d 177 ; People v. Johnson, 73 A.D.3d 951, 951, 899 N.Y.S.2d 875 ). In any event, the record establishes that the plea was entered into knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ). 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 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 ; People v. Moore, 71 N.Y.2d 1002, 1006, 530 N.Y.S.2d 94, 525 N.E.2d 740 ; People v. Sanchez, 122 A.D.3d at 647, 994 N.Y.S.2d 427 ; People v. McKenzie, 98 A.D.3d at 750, 950 N.Y.S.2d 177 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.