Opinion
March 14, 1985
Appeal from the County Court of Sullivan County (Scheinman, J., Hanofee, J.).
Defendant was charged in a two-count indictment with robbery in the first degree and robbery in the second degree stemming from an incident at the Italian Delight Restaurant in the Village of Liberty on the evening of February 17, 1983. After extensive plea negotiations, defendant entered an Alford plea of guilty ( see, North Carolina v. Alford, 400 U.S. 25) and the promised sentence of an indeterminate term of imprisonment of 3 to 9 years was imposed. Thereafter, defendant moved to vacate the conviction, contending that his allocution during the plea proceedings failed to delineate each element of robbery in the second degree and, in addition, did not constitute a proper Alford plea. The motion was denied. Defendant has appealed from both the judgment of conviction and the order denying his motion to vacate the judgment.
On this appeal, defendant reiterates that the trial court erred in accepting his guilty plea because his allocution upon the plea did not contain a recital of facts sufficient to establish a basis for the crime confessed. Specifically, defendant contends that he never actually confirmed that he was aided by his alleged coparticipant, one Zain Cooks ( see, Penal Law § 160.10), or that Cooks displayed what appeared to be a firearm ( see, Penal Law § 160.10 [a], [b]). As such, defendant argues that the court should have rejected his plea or informed him that his admissions might not constitute the crime charged, and inquired further whether he still wanted to plead guilty. We find the contention meritless.
A trial court may properly accept a guilty plea unless alerted to some impropriety, such as (1) evidence of a dispute of the facts, (2) an incorrect charge on the face of the indictment or (3) inadequate representation of counsel ( People v. Francis, 38 N.Y.2d 150, 153-154; People v. Madeo, 103 A.D.2d 901, 902; People v Pratt, 99 A.D.2d 909). No specific procedure in the taking of a plea is required so long as the defendant's rights are not prejudiced ( People v. Nixon, 21 N.Y.2d 338, 355, cert denied sub nom. Robinson v. New York, 393 U.S. 1067).
As noted above, defendant insists that a factual dispute exists, vitiating the propriety of the plea. We disagree. Prior to the plea allocution, defense counsel stated on the record that his client would be entering an Alford plea, i.e., one in which a defendant enters a plea of guilty to avoid the risk of conviction on a more serious charge, even though disputing the evidence of guilt. Defendant acknowledged on the record that, in view of the evidence against him, a plea to the lesser charge was in his best interest ( see, People v. Marlowe, 108 A.D.2d 955). However, he contends that a proper Alford plea was not entered since the evidence was insufficient to support a conviction of robbery in the first degree (Penal Law § 160.15). The record shows that defendant and a coparticipant entered the restaurant together; that defendant threatened to harm the proprietor's children if there was any interference; that the coparticipant held his hand in his pocket to simulate possession of a weapon; that defendant took approximately $400 from the cash register; and that the two perpetrators departed together and were apprehended shortly thereafter in the vicinity of the restaurant. Based on this evidence, there was ample basis for a robbery in the first degree conviction ( see, People v. Dodt, 61 N.Y.2d 408; People v. Madeo, supra). It follows that the Alford plea was properly interposed, obviating the requirement of a factual basis for the plea ( cf. People v. Rockwood, 78 A.D.2d 845, 846).
We also note that the trial court further elicited a factual recitation from defendant supporting a finding that Cooks actually participated in the robbery. While, at sentencing, defendant denied Cooks' involvement, during the plea allocution defendant affirmed the trial court's inquiry that both parties were involved in obtaining the money. Defendant further stated that he and Cooks entered and departed from the restaurant together, and were apprehended together minutes later. Although the court was not required to elicit a factual recitation of the underlying charge from defendant ( People v. Nixon, supra, p 354), in so doing, defendant clearly indicated Cooks' involvement. This is not an instance where the defendant's plea allocution casts doubt on the sufficiency of his plea ( cf. People v. Ebron, 87 A.D.2d 653).
Finally, since this case involves a bargained guilty plea to a lesser crime, it was unnecessary to establish a factual basis for the particular crime confessed ( People v. Clairborne, 29 N.Y.2d 950, 951; People v. Johnson, 107 A.D.2d 947). The record confirms that defendant entered the plea knowingly and voluntarily after discussing the alternatives extensively with his attorney. Since there is no evidence that his rights have been prejudiced, the plea should not be disturbed.
Judgment and order affirmed. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.