SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
587
KA 12-01232
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MARCUS A. NORMAN, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.
DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered March 19, 2012. The judgment convicted defendant,
upon his plea of guilty, of criminal trespass in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal trespass in the first degree (Penal Law §
140.17 [2]), defendant contends that the plea allocution was factually
insufficient because he did not admit a necessary element of the
crime, i.e., possession of a firearm, rifle or shotgun. Defendant
failed to preserve that contention for our review (see People v Lopez,
71 NY2d 662, 665), and we conclude in any event that defendant’s
challenge to the factual sufficiency of the plea allocution lacks
merit. “Where[, as here], a defendant enters a negotiated plea to a
lesser crime than one with which he is charged, no factual basis for
the plea is required” (People v Johnson, 23 NY3d 973, 975). Further,
the court’s duty to make further inquiry was not triggered by
defendant’s failure “to recite every element of the crime pleaded to”
(Lopez, 71 NY2d at 666 n 2; see People v Evans, 269 AD2d 797, 798, lv
denied 95 NY2d 834).
We reject defendant’s contention that County Court improperly
refused to treat his motions pursuant to CPL article 440 as motions to
withdraw the guilty plea. To the extent that defendant sought that
relief after the imposition of sentence, his motions were untimely
(see CPL 220.60 [3]; People v Seader, 278 AD2d 26, 26-27, lv denied 96
NY2d 806; People v Ince, 273 AD2d 101, 101, lv denied 95 NY2d 935).
Defendant’s CPL article 440 motions, moreover, are not properly before
us on his direct appeal from the judgment of conviction (see Seader,
278 AD2d at 27).
-2- 587
KA 12-01232
Contrary to defendant’s further contention, we conclude that he
was afforded meaningful representation inasmuch as he “ ‘receive[d] an
advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of counsel’ ” (People v Parson, 122 AD3d 1441,
1443, quoting People v Ford, 86 NY2d 397, 404). To the extent that
defendant’s contention is based upon matters outside the record, those
matters should be addressed by a motion pursuant to CPL 440.10 (see
People v Volfson, 69 AD3d 1123, 1125).
Finally, the sentence is not unduly harsh or severe.
Frances E. Cafarell
Entered: May 1, 2015
Clerk of the Court