THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ADIFAH WILKES DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ADIFAH WILKES, DEFENDANT–APPELLANT.

KA 17–00695

Decided: April 27, 2018

PRESENT:  CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ. MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  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 AD3d 1669, 1670 [4th Dept 2010], lv denied 16 NY3d 857 [2011];  see People v. Trinidad, 23 AD3d 1060, 1061 [4th Dept 2005], lv denied 6 NY3d 760 [2005] ).  Contrary to defendant's contention, this case does not fall within the “rare exception to the preservation rule” (Trinidad, 23 AD3d at 1061;  see People v. Lopez, 71 N.Y.2d 662, 666 [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 [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 AD3d 1401, 1402 [4th Dept 2007], lv denied 10 NY3d 863 [2008] ).

Mark W. Bennett

Clerk of the Court