Opinion
1243 KA 13-01610
11-21-2014
The PEOPLE of the State of New York, Respondent, v. Scott A. MILLIMAN, Defendant–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.
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.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty 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 attempted assault in the second degree pursuant to Penal Law § 120.05(3) is a legal impossibility (see People v. Campbell, 72 N.Y.2d 602, 607, 535 N.Y.S.2d 580, 532 N.E.2d 86 ), a defendant may plead guilty to a nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed’ ” (People v. McFadden, 28 A.D.3d 1245, 1245, 812 N.Y.S.2d 914, lv. denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 ). Defendant validly waived the right to appeal, and that valid waiver encompasses the challenge in defendant's main brief to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 ). Although defendant's contention in his main brief that his plea was not knowingly, intelligently, and voluntarily entered survives his waiver of the right to appeal (see People v. Bishop, 115 A.D.3d 1243, 1244, 982 N.Y.S.2d 644, lv. denied 23 N.Y.3d 1018, 992 N.Y.S.2d 800, 16 N.E.3d 1280 ), we reject that contention. “[T]he plea allocution as a whole establishes that ‘defendant understood the charges and made an intelligent decision to enter a plea’ ” (People v. Keitz, 99 A.D.3d 1254, 1255, 951 N.Y.S.2d 454, lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330, reconsideration denied 21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893, quoting People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ). Moreover, “nothing [defendant] said raised the possibility of a viable justification defense” (People v. Spickerman, 307 A.D.2d 774, 775, 762 N.Y.S.2d 470, lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 408, 799 N.E.2d 631 ; cf. People v. Ponder, 34 A.D.3d 1314, 1315, 823 N.Y.S.2d 792 ). “ ‘[T]he challenge by defendant [in his pro se supplemental brief] to the sufficiency of the evidence before the grand jury is forfeited by his guilty plea’ ” (People v. Ruffin, 101 A.D.3d 1793, 1793, 955 N.Y.S.2d 917, lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 ; see People v. Anderson, 90 A.D.3d 1475, 1477, 935 N.Y.S.2d 237, lv. denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002 ). Finally, we have reviewed the remaining contentions in defendant's pro se supplemental brief, and to the extent they are properly before us in the context of defendant's guilty plea, we conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.