Torres v. McGrath, 407 F. Supp. 2d 551, 558-59 (S.D.N.Y. 2006). See People v. Moore, 525 N.E.2d 740, 742 (N.Y. 1988) (holding that factual basis for a plea was unnecessary where defendant pleaded guilty to a lesser crime than the one charged in the indictment); People v. Flores, 655 N.Y.S.2d 3, 4 (N.Y. App. Div. 1997) (same). "Nor does the United States Constitution require a factual inquiry for a court to accept a guilty plea."

As a matter of New York state law, a factual inquiry is not required where, as here, a defendant pleads guilty to a lesser crime than the offense charged in the indictment. See People v. Moore, 71 N.Y.2d 1002, 530 N.Y.S.2d 94, 96 (N.Y. 1988) (although allocution did not establish that defendant possessed "loaded firearm," an element of the crime, "since defendant pleaded guilty to a lesser crime than the one charged in the indictment, a factual basis for the plea was unnecessary"); People v. Flores, 237 A.D.2d 128, 655 N.Y.S.2d 3, 4 (App. Divi. 1st Dep't 1997) (holding that "because defendant pleaded guilty to a lesser crime than the crime charged in the indictment, a factual basis for the plea was not required") (cited in Torres v. McGrath, 407 F. Supp.2d 551, 559 (S.D.N.Y. 2006) (although trial court did not ask defendant about specific facts of his criminal conduct, or elicit facts sufficient to support certain elements of the offense, plea allocution was factually adequate, where offense to which defendant pled guilty was a lesser crime than offense charged in the indictment). Nevertheless, Hill's factual allocution, viewed in its entirety, was sufficient to satisfy New York's requirements.

As a matter of New York state law, a factual inquiry is not required where, as here, a defendant pleads guilty to a lesser crime than the offense charged in the indictment. See People v. Moore, 71 N.Y.2d 1002, 530 N.Y.S.2d 94, 96 (N.Y. 1988) (although allocution did not establish that defendant possessed "loaded firearm," an element of the crime, "since defendant pleaded guilty to a lesser crime than the one charged in the indictment, a factual basis for the plea was unnecessary"); People v. Flores, 237 A.D.2d 128, 655 N.Y.S.2d 3, 4 (App. Divi. 1st Dep't 1997) (holding that "because defendant pleaded guilty to a lesser crime than the crime charged in the indictment, a factual basis for the plea was not required") (cited in Torres v. McGrath, 407 F. Supp.2d 551, 559 (S.D.N.Y. 2006) (although trial court did not ask defendant about specific facts of his criminal conduct, or elicit facts sufficient to support certain elements of the offense, plea allocution was factually adequate, where offense to which defendant pled guilty was a lesser crime than offense charged in the indictment). Nevertheless, Hill's factual allocution, viewed in its entirety, was sufficient to satisfy New York's requirements.

While the court did not specifically inquire about, or elicit facts sufficient to support findings of, "depraved indifference to human life" or "a grave risk of death to another," New York law does not require a factual inquiry when a defendant pleads guilty to a lesser crime than the offense charged in the indictment. See People v. Moore, 530 N.Y.S.2d 94, 96 (1988) (although allocution did not establish that defendant possessed "loaded firearm," an element of the crime, "since defendant pleaded guilty to a lesser crime than the one charged in the indictment, a factual basis for the plea was unnecessary");People v. Flores, 655 N.Y.S.2d 3, 4 (1st Dep't 1997) ("because defendant pleaded guilty to a lesser crime than the crime charged in the indictment, a factual basis for the plea was not required"). Nor does the United States Constitution require a factual inquiry for a court to accept a guilty plea. Indeed, the Second Circuit has squarely held that "due process does not mandate a factual basis inquiry by state courts," noting that it is Rule 11 of the Federal Rules of Criminal Procedure, "not due process, that requires federal courts to conduct a factual inquiry before accepting a guilty plea."

In any event, defendant acknowledged, during his allocution, that he attempted to sell heroin. Defendant's claim is essentially a challenge to the sufficiency of the evidence against him and, as such, was waived by entry of a guilty plea ( People v. Flores, 237 A.D.2d 128, lv denied 90 N.Y.2d 857). We would further note that a laboratory analysis was required for the indictment.

Thus, the absence of such a verdict precludes . . . relief. . . . Inasmuch as defendant elected to enter a guilty plea, and in the course thereof, admitted his factual guilt, utilization of the newly discovered evidence motion was inappropriate as well as procedurally improper.See generally People v. Flores, 237 AD2d 128, 129 (1st Dept. 1997) ("factual issues are waived by . . . guilty plea"), lv. denied, 90 NY2d 857 (1997). Therefore, as Defendant pled guilty, her newly discovered evidence claim is precluded.

. Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when . . . a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." See also People v. Flores, 237 AD2d 128, 129 (1st Dept. 1997) ("factual issues are waived by . . . guilty plea"), lv. denied, 90 NY2d 857 (1997). The case at bar is similar to People v. Victor, 262 AD2d 872, 873-74 (1st Dept. 1999), lv. denied, 94 NY2d 830 (1999), in which the First Department held that: