PEOPLE v. COLE (2007)

 On appeal from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ), defendant contends that his plea was not knowingly, voluntarily or intelligently entered because County Court failed to elicit from defendant the underlying facts of the crimes to which he was pleading guilty.   That contention “is actually a challenge to the factual sufficiency of the plea allocution ․, [which] is encompassed by the valid waiver of the right to appeal” (People v. Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333;  see also People v. Montstream, 21 A.D.3d 1353, 804 N.Y.S.2d 154, lv. denied 6 N.Y.3d 756, 810 N.Y.S.2d 424, 843 N.E.2d 1164;  People v. King, 20 A.D.3d 907, 798 N.Y.S.2d 638, lv. denied 5 N.Y.3d 829, 804 N.Y.S.2d 44, 837 N.E.2d 743).   In any event, defendant's contention lacks merit.  “[N]o factual colloquy was required inasmuch as defendant pleaded guilty to a lesser included offense” (People v. Thelbert, 17 A.D.3d 1049, 1049, 793 N.Y.S.2d 784;  see People v. Williams, 35 A.D.3d 1198, 1199, 825 N.Y.S.2d 885, lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465;  People v. Fifield, 24 A.D.3d 1221, 1222, 807 N.Y.S.2d 256, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: