Opinion
April 30, 1986
Appeal from the County Court, Nassau County (Winick, J.).
Judgment affirmed.
By failing to make a motion to the court of first instance to withdraw his plea or vacate his conviction, the defendant has failed to preserve for appellate review the issue of the sufficiency of the plea allocution (see, People v. Pellegrino, 60 N.Y.2d 636; People v. Santiago, 100 A.D.2d 857). Nor is reversal warranted in the interest of justice. It is well settled that a guilty plea can be accepted in the absence of a defendant's personal recitation of all the elements of the crime charged when there is no suggestion on the record that the plea is improvident or baseless (People v. Nixon, 21 N.Y.2d 338, 350, cert denied sub nom. Robinson v. New York, 393 U.S. 1067; People v. Demonde, 111 A.D.2d 867; People v. Moore, 91 A.D.2d 1050). The mere fact that a defendant's allocution does not establish the essential elements of the crime to which he pleaded guilty is not, in itself, fatal with regard to the propriety of the plea. It has been recognized that a defendant, pursuant to a plea-bargaining agreement, may plead guilty to a crime for which there is no factual basis inasmuch as he may wish to avoid the risk of conviction upon a trial of the more serious crime charged in the indictment (People v. Wedgewood, 106 A.D.2d 674, 676).
In the instant case, the defendant heard a recitation of the prosecution's evidence against him and was afforded the opportunity to present his version of the events. The claim that his gun was not loaded is a claim which he might not have been able to argue successfully at trial (see, People v. Madeo, 103 A.D.2d 901, 903). Given the fairness of the plea arrangement, the adherence to the promised sentence and the adequate representation by counsel, the court properly accepted the defendant's guilty plea without the need for further inquiry (see, People v. Francis, 38 N.Y.2d 150; People v. Demonde, supra, p 868). Mangano, J.P., Gibbons, Weinstein, Eiber and Spatt, JJ., concur.