| People v Milliman |
| 2014 NY Slip Op 08199 [122 AD3d 1437] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vScott A. Milliman, Appellant. |
Charles A. Marangola, Moravia, for defendant-appellant.
Scott A. Milliman, defendant-appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered June 25, 2013. The judgment convicted defendant, upon his plea of guilty, ofattempted assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted assault in the second degree (Penal Law §§ 110.00,120.05 [3]). We note at the outset that " '[a]lthough the crime of attemptedassault in the second degree pursuant to Penal Law § 120.05 (3) is a legalimpossibility (see People v Campbell, 72 NY2d 602, 607 [1988]), a defendantmay plead guilty to a nonexistent crime in satisfaction of an indictment charging a crimefor which a greater penalty may be imposed' " (People v McFadden, 28 AD3d1245, 1245 [2006], lv denied 7 NY3d 792 [2006]). Defendant validlywaived the right to appeal, and that valid waiver encompasses the challenge indefendant's main brief to the severity of the sentence (see People v Lopez, 6 NY3d 248, 256 [2006]; seegenerally People v Lococo, 92 NY2d 825, 827 [1998]). Although defendant'scontention in his main brief that his plea was not knowingly, intelligently, and voluntarilyentered survives his waiver of the right to appeal (see People v Bishop, 115 AD3d 1243, 1244 [2014], lvdenied 23 NY3d 1018 [2014]), we reject that contention. "[T]he plea allocution as awhole establishes that 'defendant understood the charges and made an intelligent decisionto enter a plea' " (Peoplev Keitz, 99 AD3d 1254, 1255 [2012], lv denied 20 NY3d 1012 [2013],reconsideration denied 21 NY3d 913 [2013], quoting People v Goldstein, 12 NY3d295, 301 [2009]). Moreover, "nothing [defendant] said raised the possibility of aviable justification defense" (People v Spickerman, 307 AD2d 774, 775 [2003],lv denied 100 NY2d 624 [2003]; cf. People v Ponder, 34 AD3d 1314, 1315 [2006])." '[T]he challenge by defendant [in his pro se supplemental brief] to thesufficiency of the evidence before the grand jury is forfeited by his guilty plea' "(People v Ruffin, 101 AD3d1793, 1793 [2012], lv denied 21 NY3d 1019 [2013]; see People v Anderson, 90AD3d 1475, 1477 [2011], lv denied 18 NY3d 991 [2012]). Finally, we havereviewed the remaining contentions in defendant's pro se supplemental brief, and to theextent they are properly before us in the context of defendant's guilty plea, we concludethat they are without merit. Present—Centra, J.P., Fahey, Carni, Sconiers andValentino, JJ.