PEOPLE v. MCCALL (2025)

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered October 25, 2023, convicting defendant, upon his plea of guilty, of robbery in the third degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 2 to 4 years for robbery in the third degree and criminal possession of a weapon in the third degree, and time served for criminal possession of a weapon in the fourth degree, unanimously affirmed.

Defendant's appellate challenge to the propriety of his plea to criminal possession of a weapon in the fourth degree, as a lesser included offense of criminal possession of a weapon in the third degree, is foreclosed by his valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020];  People v. Trulove, ––– A.D.3d ––––, 228 N.Y.S.3d 173 [1st Dept. 2025]).  In any event, by pleading guilty, defendant forfeited his right to challenge his plea to the lesser included offense of criminal possession of a weapon in the fourth degree (see People v. Manuel, 143 A.D.3d 473, 38 N.Y.S.3d 551 [1st Dept. 2016], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 299, 74 N.E.3d 684 [2017]).  Defendant also failed to preserve any challenge regarding his plea to the lesser included offense by raising it in a motion to withdraw his plea or otherwise objecting prior to the imposition of sentence (see People v. White, 38 A.D.3d 320, 321, 831 N.Y.S.2d 410 [1st Dept. 2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 900, 872 N.E.2d 1206 [2007]), and we decline to review it in the interest of justice.

As an alternative holding, we reject defendant's contention that the fourth-degree criminal possession of a weapon count must be dismissed as an inclusory concurrent count under CPL 300.40(3)(b).  This provision “deals only with trials, and has no application to convictions obtained on plea of guilty” (People v. Walton, 41 N.Y.2d 880, 880–881, 393 N.Y.S.2d 979, 362 N.E.2d 610 [1977]).