Opinion
September 21, 1989
Appeal from the County Court of Albany County (Harris, J.).
Defendant entered the home of his sister-in-law, Vivian Chestnut, and fired at her at close range with a 16-gauge shotgun, striking her in the lower abdomen. Defendant then struck his estranged wife, Valerie Perrotti, over the head, first with the shotgun and then with a ceramic crock pot. As a result, defendant was charged by an indictment alleging two counts each of attempted murder in the second degree, burglary in the first degree and assault in the first degree. Following unsuccessful Huntley and Mapp hearings and after a trial jury had been selected, defendant, with the assistance of retained counsel and in accordance with a plea bargain placed on the record, entered pleas of guilty to the two counts of assault in the first degree in full satisfaction of the indictment, with the specific understanding that he would be sentenced to consecutive prison terms of 5 to 15 years and 3 1/3 to 10 years. Defendant was sentenced in accordance with the plea bargain and now appeals.
Because both of the offenses for which defendant was convicted were class C felonies, the aggregate maximum term cannot exceed 20 years (see, Penal Law § 70.30 [1] [c] [i]).
Defendant's primary contention is that the plea allocution does not support a conviction of assault in the first degree with respect to either Perrotti or Chestnut. Initially, since defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction rendered thereon, the issue is not preserved for our review (see, People v. George, 137 A.D.2d 876). Second, it is well settled that a bargained-for guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed (see, People v. Adams, 57 N.Y.2d 1035, 1038). Here, defendant was permitted to plead to the two lowest counts of the indictment in full satisfaction thereof, while counts alleging attempted murder in the second degree and burglary in the first degree, for which there was a sufficient factual predicate, were dismissed. Furthermore, reversal is not required in the interest of justice since the record supports a finding that the plea was knowingly and voluntarily entered with the assistance of competent counsel (see, People v. Caban, 131 A.D.2d 863) and represented "a voluntary and intelligent choice among the alternative courses of action open" (North Carolina v Alford, 400 U.S. 25, 31; see, People v. Francabandera, 33 N.Y.2d 429, 434; People v. Nixon, 21 N.Y.2d 338, cert denied sub nom. Robinson v. New York, 393 U.S. 1067; People v. Foster, 19 N.Y.2d 150).
We also reject defendant's contention that County Court impermissibly imposed consecutive sentences. Clearly, the assault upon Chestnut and the ensuing assault upon Perrotti were separate, successive acts (see, Penal Law § 70.25; People v. Brathwaite, 63 N.Y.2d 839, 842-843). The contentions in the pro se supplemental brief that defendant was denied effective assistance of counsel, procedural due process and equal protection have been considered and have been found to be either unpreserved for our review or without merit. Finally, we find no basis for reduction of the sentence in the interest of justice. "Having received the benefit of his bargain, defendant should be bound by its terms" (People v. Felman, 141 A.D.2d 889, 890, lv denied 72 N.Y.2d 918).
Judgment affirmed. Mahoney, P.J., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.