Opinion
KA 04-00855.
February 4, 2005.
Appeal from a judgment of the Wayne County Court (Stephen R. Sirkin, J.), rendered March 12, 2001. The judgment convicted defendant, upon her plea of guilty, of assault in the second degree.
Present: Pigott, Jr., P.J., Green, Gorski, Martoche and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of incarceration of five years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of assault in the second degree (Penal Law § 120.05). We reject defendant's contention that the allocution with respect to that offense is factually insufficient. In the indictment, defendant was charged with assault in the first degree but chose to plead guilty to the lesser included offense of assault in the second degree. In pleading guilty to a lesser included offense, defendant forfeited her right to challenge the factual basis for her plea ( see People v. Clairborne, 29 NY2d 950, 951; People v. Tillman, 147 AD2d 599, 600; People v. Mazzilli, 125 AD2d 602, lv denied 69 NY2d 953, 70 NY2d 651 [1987]). However, we agree with the contention of defendant that the seven-year determinate sentence is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence to a determinate term of incarceration of five years.