Opinion
December 9, 1985
Appeal from the Supreme Court, Westchester County (Ingrassia, J.).
Sentences reversed, on the law, and case remitted to Criminal Term for resentencing as a second felony offender.
The sentencing court declined to sentence defendant as a second felony offender on the ground that his guilty plea to the predicate felony, i.e., attempted robbery in the second degree, was constitutionally defective. The court reached this conclusion principally on the ground that during the plea allocution on that prior felony defendant did not specifically elaborate on all of the elements of the crime of which he stood convicted. Criminal Term's determination is in error.
Initially, we note that defendant had not preserved as a matter of law the issue of the insufficiency of the factual recitation in his prior allocution. "A challenge to a plea based on an insufficient factual recitation is to be distinguished from a challenge based on constitutional grounds, which may be sustained even if raised for the first time at a second felony offender hearing" (People v Perkins, 89 A.D.2d 956). Nor do the facts of this case merit our reaching that issue in the interest of justice. The failure to elicit a full and complete recitation of the underlying facts of the prior crime did not render that plea deficient. Even in the absence of an inquiry by the court as to the factual basis of a plea, the plea may be sustained since "[a] bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed" (People v Clairborne, 29 N.Y.2d 950, 951).
As the Court of Appeals indicated in People v Harris ( 61 N.Y.2d 9, 17), "[t]he key issue in these cases * * * is whether the defendant * * * knowingly, voluntarily and intelligently relinquished [his] rights" when he pleaded guilty. The record of the prior proceedings and all relevant circumstances affirmatively demonstrate that defendant "knowingly, voluntarily and intelligently relinquished [his] rights" when he entered a plea of guilty to the prior felony and that he should accordingly have been sentenced as a second felony offender (see, People v Sargent, 100 A.D.2d 978; People v Perkins, supra). Mollen, P.J., Thompson, Brown and Lawrence, JJ., concur.