Opinion
KA 02-00124
May 2, 2003.
Appeal from a judgment of Chautauqua County Court (Ward, J.), entered September 17, 2001, convicting defendant upon his plea of guilty of attempted burglary in the second degree.
BONNIE BURGIO, WATERTOWN, FOR DEFENDANT-APPELLANT.
JAMES P. SUBJACK, DISTRICT ATTORNEY, MAYVILLE (TRACEY A. BRUNECZ OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
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 burglary in the second degree (Penal Law 110.00, 140.25) in satisfaction of an indictment charging him with, inter alia, burglary in the second degree. We reject the contention of defendant that his plea was not knowingly and voluntarily entered. Defendant stated several times that he understood that he was pleading guilty to a lesser included offense in order to avoid a more severe sentence ( see generally People v. Dashnaw, 260 A.D.2d 658, 659, lv denied 93 N.Y.2d 968) . Because defendant pleaded guilty to a lesser included offense, no factual colloquy was required ( see People v. Harris, 233 A.D.2d 959, lv denied 89 N.Y.2d 1094), and thus we reject defendant's further contention that the plea allocution was legally insufficient. Finally, by pleading guilty defendant forfeited his right to contend on appeal that he was denied his right to testify before the grand jury and that defense counsel's failure to advise the prosecutor of defendant's desire to testify before the grand jury constituted ineffective assistance of counsel ( see generally People v Hansen, 95 N.Y.2d 227, 230-231; People v. Burke, 256 A.D.2d 1244, lv denied 93 N.Y.2d 851).