Opinion
688 KA 17–00749
06-08-2018
The PEOPLE of the State of New York, Respondent, v. James BROWN, Defendant–Appellant.
JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (KIMBERLY J. CZAPRANSKI OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS, PALMYRA OF COUNSEL), FOR RESPONDENT.
JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (KIMBERLY J. CZAPRANSKI OF COUNSEL), FOR DEFENDANT–APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS, PALMYRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, assault in the second degree ( Penal Law § 120.05[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that his plea was not knowing and voluntary because, inter alia, County Court did not inform him of the trial rights that he was giving up until after he pleaded guilty (see People v. Scott, 151 A.D.3d 1702, 1702, 57 N.Y.S.3d 289 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ; see generally People v. Rojas, 147 A.D.3d 1535, 1536, 47 N.Y.S.3d 813 [4th Dept. 2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ; People v. Brown, 115 A.D.3d 1204, 1205, 982 N.Y.S.2d 255 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ). In any event, we reject defendant's contention. "It is axiomatic that the court ‘need not engage in any particular litany’ in order to ensure that a defendant makes a ‘knowing, voluntary and intelligent choice among alternative courses of action’ ... and, here, the record establishes that defendant's plea was a knowing, voluntary and intelligent choice"( Scott, 151 A.D.3d at 1702, 57 N.Y.S.3d 289 ). The record belies defendant's further contention that his plea was not voluntary or intelligent because the court failed to notify defendant in advance of his plea that one of the charges would constitute a violent felony offense. Indeed, the record is clear that the assault charge constituted the violent felony offense and, contrary to defendant's contention, the charge of criminal possession of a weapon in the third degree was not upgraded to a violent felony offense. Finally, the record also belies defendant's contention that the plea was not voluntary or intelligent because there was confusion regarding the appropriate sentence, inasmuch as "the record reflects that defendant was aware of the sentence to be imposed" ( People v. Dickerson, 61 A.D.3d 1220, 1221, 876 N.Y.S.2d 662 [3d Dept. 2009], lv denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009] ).