PEOPLE v. WILKES (2018)

MEMORANDUM AND ORDER

On appeal from a judgment convicting her upon her plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that her plea was not knowingly, voluntarily or intelligently entered because the factual allocution negated an essential element of the crime to which she pleaded guilty.  Defendant “failed to preserve that contention for our review by moving to withdraw [the] plea or to vacate the judgment of conviction” (People v. Cloyd, 78 A.D.3d 1669, 1670, 910 N.Y.S.2d 832 [4th Dept. 2010], lv denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011];  see People v. Trinidad, 23 A.D.3d 1060, 1061, 804 N.Y.S.2d 876 [4th Dept. 2005], lv denied 6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168 [2005] ).  Contrary to defendant's contention, this case does not fall within the “rare exception to the preservation rule” (Trinidad, 23 A.D.3d at 1061, 804 N.Y.S.2d 876;  see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).  Although defendant initially stated that the gun was unloaded at the time she pointed it at the victim, she subsequently acknowledged that she possessed both the gun and the ammunition (see § 265.00[15];  see generally People v. Wilson, 252 A.D.2d 241, 245, 684 N.Y.S.2d 718 [4th Dept. 1998] ), and thus her factual allocution did not negate an essential element of the crime.  In any event, we note that County Court conducted “further inquiry to ensure that defendant understood the nature of the charge and that the plea was intelligently entered” (People v. Glasper, 46 A.D.3d 1401, 1402, 847 N.Y.S.2d 875 [4th Dept. 2007], lv denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252 [2008] ).

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

Memorandum: