| People v Nelson |
| 2008 NY Slip Op 04232 [51 AD3d 1137] |
| May 8, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jonathan C.Nelson, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Trice of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered October 17, 2005, upon a verdict convicting defendant of the crime of attemptedcriminal possession of a weapon in the third degree.
After a loaded firearm was found under the driver's seat of the vehicle defendant wasoperating, he was indicted on one count of criminal possession of a weapon in the third degree. Aplea bargain was negotiated, but County Court twice rejected defendant's plea allocutionsbecause they included professions of innocence. Thereafter, defendant waived his right to a jurytrial and consented to a bench trial upon stipulated facts. Based on those facts and theprosecutor's request for consideration of a lesser included offense, County Court found defendantguilty of attempted criminal possession of a weapon in the third degree. County Court thensentenced him, as a second violent felony offender, to three years in prison and five years ofpostrelease supervision, as had been agreed in the earlier plea agreement.
Defendant now appeals, contending that his agreement to a bench trial upon stipulated factswas not knowing, voluntary and intelligent because County Court did not specifically inform himthat the effect of a conviction after such a trial would be the same as a conviction after a trial byjury. This issue, however, is not preserved for our review because defendant's [*2]agreement here was the functional equivalent of a guilty plea(see People v Harler, 296 AD2d 712, 713 [2002]), yet he never moved to withdraw it orto vacate the judgment of conviction (see People v Folk, 43 AD3d 1229, 1230 [2007], lv denied 9NY3d 1033 [2008]; People v Brill,42 AD3d 823, 823 [2007], lv denied 9 NY3d 960 [2007]). In any event, the recordreflects that County Court fully advised him of the rights he was forgoing by waiving a jury trialas well as the consequences thereof, including the facts that he would have a second violentfelony conviction and be sentenced accordingly. Defendant indicated that his counsel hadexplained the nature of a trial on stipulated facts, that he understood what was going on, and thathe would be convicted and sentenced as contemplated in the earlier negotiated plea agreement(see People v Williams, 35 AD3d971, 972 [2006], lv denied 8 NY3d 928 [2007]; People v Bowman, 34 AD3d 935, 937 [2006], lv denied 8NY3d 844 [2007]). Based on County Court's inquiries and defendant's responses, we are satisfiedthat he voluntarily and knowingly entered into both the waiver of a trial by jury and thestipulation to the facts as recited by the People.
Finally, defendant's claim that his sentence was harsh and excessive is unavailing inasmuchas the sentence and period of postrelease supervision imposed were the minimum terms possiblefor a second violent felony offender convicted of a class E felony (see Penal Law §70.04 [3] [d]; § 70.45 [2]; People v Williams, 35 AD3d at 973).
Cardona, P.J., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.