Opinion
KA 04-00885.
December 22, 2005.
Appeal from a judgment of the Supreme Court, Erie County (Richard C. Kloch, Sr., A.J.), rendered March 19, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree.
Present: Scudder, J.P., Kehoe, Martoche, Smith and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02). Defendant moved to withdraw his plea on a ground different from that raised on appeal, and thus defendant's present contention that the plea was not knowing, intelligent and voluntary is not preserved for our review ( see People v. Mackey, 77 NY2d 846, 847; see generally People v. Ali, 96 NY2d 840, 841). Defendant further contends that Supreme Court erred in failing to make further inquiry concerning a potential defense under Penal Law § 265.20 (a) (3). We reject that contention. Because defendant pleaded guilty to a lesser crime than that charged, a factual basis for the plea was not required ( see People v. McCorkle, 298 AD2d 848, lv denied 99 NY2d 561). In any event, we note that defendant's factual recitation did not indicate that defendant had such a potential defense, and thus the court had no duty to make further inquiry into such a defense ( see generally People v. Lopez, 71 NY2d 662, 666).