People v Bishop (Jonathan)

[*1] People v Bishop (Jonathan) 2015 NY Slip Op 50176(U) Decided on February 17, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2012-757 K CR

The People of the State of New York Respondent,

against

Jonathan Bishop, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander Calabrese, J.), rendered February 23, 2012. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with theft of services (Penal Law § 165.15 [3]) and trespass (Penal Law § 140.05), and, while represented by counsel, pleaded guilty to disorderly conduct (Penal Law § 240.20) in satisfaction of the charges.

By failing to move in the court below either to withdraw his guilty plea (see CPL 220.60 [3]) or to vacate the judgment of conviction (see CPL 440.10), defendant failed to preserve the issue regarding the factual sufficiency of his plea allocution at the time he pleaded guilty (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Stevens, 43 AD3d 1088 [2007]), and we decline to review this issue in the interest of justice (see People v Sands, 45 AD3d 414 [2007]). Moreover, "[t]he narrow exception to the preservation rule explained in People v Lopez (71 NY2d at 665-666) does not apply since defendant's factual allocution does not cast significant doubt on his guilt" (People v Sands, 45 AD3d at 415). To the extent that defendant argues that his plea allocution was insufficient to establish the violation of disorderly conduct, "[e]ven if the defendant's allocution did not establish the essential elements of the crime to which he pleaded guilty, it would not require vacatur of his plea since there is no suggestion in the record that the plea was improvident or baseless" (People v Duff, 158 AD2d 711, 711 [1990]; see People v Seeber, 4 NY3d 780, 781 [2005]; People v Toxey, 86 NY2d 725, 726 [1995]; People v Pratcher, 50 AD3d 1063 [2008]). Moreover, "[a] bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed" (People v Claiborne, 29 NY2d 950, 951 [1972]).

Accordingly, the judgment of conviction is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: February 17, 2015