| People v Mayo |
| 2010 NY Slip Op 07197 [77 AD3d 683] |
| October 5, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JohnnyMayo, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered April 16, 2009, convicting him of attempted murder in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was ineffective, as there is no indication inthe record that the defendant understood the distinction between the right to appeal and other trial rightsforfeited incident to a plea of guilty (seePeople v Moyett, 7 NY3d 892, 893 [2006]; People v Lopez, 6 NY3d 248, 257 [2006]; People v Olivier, 48 AD3d 486[2008]; People v Cieslewicz, 45 AD3d1344, 1345 [2007]).
While the defendant pleaded guilty to attempted felony murder, a "nonexistent" (People vMartinez, 81 NY2d 810, 811 [1993]) or "logically and legally impossible" (People vFoster, 19 NY2d 150, 152 [1967]) crime, the plea was permissible since it was "in satisfaction ofan indictment charging a crime with a heavier penalty" (People v Martinez, 81 NY2d at 812;see Penal Law § 70.00 [2] [a]; [3] [a]; § 70.02 [1] [a]; [2] [a]; [3] [a]; §125.25 [3]; People v Foster, 19 NY2d at 152-153; People v McFadden, 28 AD3d 1245 [2006]; People v Guishard, 15 AD3d 731, 732[2005]; cf. People v Lopez, 45 AD3d493, 494 [2007]; People v Hassin, 48 AD2d 705 [1975]). Furthermore, contrary to thedefendant's contention that his plea allocution was factually insufficient, where, as here, the defendantpleads guilty to a lesser crime than the one charged in the indictment and the allocution establishes thatthe defendant understood the charges against him, a factual basis for the plea is unnecessary (seePeople v Clairborne, 29 NY2d 950 [1972]; People v Billings, 60 AD3d 961, 962 [2009]; People v Richardson, 50 AD3d 704[2008]; People v Martin, 239 AD2d 436, 437 [1997]). Santucci, J.P., Balkin, Belen andChambers, JJ., concur.