| People v Hinkson |
| 2009 NY Slip Op 00748 [59 AD3d 941] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Wayne R.Hinkson, Appellant. (Appeal No. 2.) |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered February14, 2006. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aweapon in the third degree (three counts) and menacing in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of three counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[former (4)]) and one count of menacing in the third degree (§ 120.15). Defendant failed tomove to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve forour review his challenge to the factual sufficiency of the plea allocution with respect to themenacing count (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Dorrah, 50 AD3d 1619[2008], lv denied 11 NY3d 736 [2008]). In any event, that challenge is without merit.Defendant admitted during the plea colloquy that he formed his hand into the shape of a gun andpushed it into the victim's abdomen with the intent to place the victim in fear of physical injury(see Penal Law § 120.15; Matter of Pedro H., 308 AD2d 374 [2003])."Defendant admitted each of the elements of [menacing in the third degree], and [his] factualallocution therefore was legally sufficient" (People v Gibbs, 31 AD3d 1186 [2006], lv denied 7 NY3d867 [2006]). Even assuming, arguendo, that defendant's recitation of the facts underlying themenacing count called into question the voluntariness of the plea, we conclude that CountyCourt conducted the requisite further inquiry to ensure that defendant's plea was knowing andvoluntary (see Lopez, 71 NY2d at 666; People v Brow, 255 AD2d 904, 905[1998]). Present—Smith, J.P., Centra, Peradotto and Gorski, JJ.