PEOPLE v. SMITH (2007)

 Defendant appeals from a judgment convicting him upon his guilty plea of scheme to defraud in the first degree (Penal Law § 190.65[1] ), two counts of offering a false instrument for filing in the first degree (§ 175.35), forgery in the second degree (§ 170.10[1] ), and criminal possession of a forged instrument in the second degree (§ 170.25).   We reject defendant's challenge to the factual sufficiency of the plea allocution.   Contrary to the contention of defendant, “[t]here is no requirement that [he] personally recite the facts underlying the crime[s]” (People v. Spikes, 28 A.D.3d 1101, 1102, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809), and “nothing that defendant said or failed to say in [his] allocution negated any element of the offense to which [he] pleaded ․ or otherwise called into question [his] admitted guilt” (People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797).   The record does not support defendant's further contention that the plea was the product of coercion by the prosecution.   Defendant failed to preserve for our review his contention that there was a discrepancy between the sentence promised as part of the plea bargain and the sentence imposed (see CPL 470.05[2] ).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice because the alleged discrepancy did not change defendant's aggregate sentence and is thus harmless.   The further contention of defendant that he was denied effective assistance of counsel does not survive his plea of guilty inasmuch as “[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” (People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: