People v. Coluccio

• Decision Date: 11 February 1991
• Citation: 566 N.Y.S.2d 87,170 A.D.2d 523
• Parties: The PEOPLE, etc., Respondent, v. Richard COLUCCIO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 87

566 N.Y.S.2d 87

170 A.D.2d 523

The PEOPLE, etc., Respondent, v. Richard COLUCCIO, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 11, 1991.

Gino Josh Singer, New York City, for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Kerriann Kelly, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, EIBER, HARWOOD and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from an amended judgment of the Supreme Court, Suffolk County (Rohl, J.), rendered November 1, 1988, convicting him of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the amended judgment is affirmed.

The defendant contends that his plea of guilty to criminal possession of a weapon in the second degree was insufficient since he did not expressly admit the required intent, nor did he admit facts from which such intent could be inferred. We disagree. The defendant, by his plea of guilty, forfeited the right to review of any nonjurisdictional defects in the matter (see, People v. Fernandez, 67 N.Y.2d 686, 499 N.Y.S.2d 919, 490 N.E.2d 838). Here, the plea minutes indicate that the defendant acknowledged that he freely bargained for his disposition and, after consultation with his attorney, expressed his wish to plead guilty. By doing so, he availed himself of a lesser mandatory term of incarceration and avoided the risk of conviction on all counts after trial. He should not now be heard to complain about a disposition which he sought and which benefitted him (see, People v. Rios, 112 A.D.2d 327, 491 N.Y.S.2d 777; People v. Kapezis, 101 A.D.2d 816, 475 N.Y.S.2d 351).

In any event, the plea allocution was adequate. Although the defendant must acknowledge facts sufficient to establish the commission of the crime, the "court's duty to inquire further is not triggered merely by the failure of a pleading defendant * * * to recite every element of the crime pleaded to" (People v. Lopez, 71 N.Y.2d 662, 666, n. 2, 529 N.Y.S.2d 465, n. 2, 525 N.E.2d 5, n. 2; see also, People v. Moore, 71 N.Y.2d 1002, 1005, 530 N.Y.S.2d 94, 525 N.E.2d 740). Moreover, with respect to the instant crime, it has repeatedly been held that the element of intent may be inferred from all the circumstances (see, People v. Perez, 130 A.D.2d 595, 515 N.Y.S.2d 303; People v. Taylor, 121 A.D.2d 581, 503 N.Y.S.2d 632; People...