Opinion
December 14, 1987
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is affirmed.
The defendant failed to raise his objections to the adequacy of his plea allocution in the court of first instance and accordingly has not preserved his claim for appellate review (see, People v Hoke, 62 N.Y.2d 1022; People v Pellegrino, 60 N.Y.2d 636). In any event, we find that the allocution established that the defendant knowingly and intelligently pleaded guilty to burglary in the second degree (see, People v Harris, 61 N.Y.2d 9). Moreover, a plea of guilty will be sustained in the absence of a factual recitation, in the defendant's own words, of the underlying circumstances of the crime if "[t]here is no suggestion in the record or dehors the record that the guilty plea was improvident or baseless" (People v Fooks, 21 N.Y.2d 338, 350, cert denied sub nom. Robinson v New York, 393 U.S. 1067), particularly where, as here, the defendant was actively represented by counsel and made no effort to withdraw the plea (see, People v Perkins, 89 A.D.2d 956; People v Nance, 110 A.D.2d 857). We also reject the defendant's contention that so much of the indictment as charges him with burglary in the second degree should have been dismissed on the ground that the 1981 amendment to Penal Law § 140.25 (2), which abrogated the distinction between burglaries of dwellings committed during the day and those committed at night, and classified both as class C violent felonies (L 1981, ch 361), was violative of due process of law or the Eighth Amendment prohibition against cruel and unusual punishment (see, People v Kepple, 98 A.D.2d 783; People v Buyce, 97 A.D.2d 632).
We have reviewed the defendant's other contentions and find them to be without merit. Mollen, P.J., Bracken, Rubin, Kooper and Spatt, JJ., concur.