People v. Mayo

• Decision Date: 05 October 2010
• Citation: 77 A.D.3d 683,908 N.Y.S.2d 353
• Parties: The PEOPLE, etc., respondent, v. Johnny MAYO, appellant.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 353 77 A.D.3d 683 The PEOPLE, etc., respondent, v. Johnny MAYO, appellant. Supreme Court, Appellate Division, Second Department, New York. Oct. 5, 2010.

Mark Diamond, New York, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered April 16, 2009, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal wasineffective, as there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a plea of guilty ( see People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Olivier, 48 A.D.3d 486, 849 N.Y.S.2d 790; People v. Cieslewicz, 45 A.D.3d 1344, 1345, 845 N.Y.S.2d 590).

While the defendant pleaded guilty to attempted felony murder, a "nonexistent" ( People v. Martinez, 81 N.Y.2d 810, 811, 595 N.Y.S.2d 376, 611 N.E.2d 277) or "logically and legally impossible" ( People v. Foster, 19 N.Y.2d 150, 152, 278 N.Y.S.2d 603, 225 N.E.2d 200) crime, the plea was permissible since it was "in satisfaction of an indictment charging a crime with a heavier penalty" ( People v. Martinez, 81 N.Y.2d at 812, 595 N.Y.S.2d 376, 611 N.E.2d 277; see Penal Law § 70.00[2][a]; [3][a]; § 70.02[1] [a]; [2][a]; [3][a]; § 125.25[3]; People v. Foster, 19 N.Y.2d at 152-153, 278 N.Y.S.2d 603, 225 N.E.2d 200; People v. McFadden, 28 A.D.3d 1245, 812 N.Y.S.2d 914; People v. Guishard, 15 A.D.3d 731, 732, 789 N.Y.S.2d 332; cf. People v. Lopez, 45 A.D.3d 493, 494, 846 N.Y.S.2d 164; People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253). Furthermore, contrary to the defendant's contention that his plea allocution was factually insufficient, where, as here, the defendant pleads guilty to a lesser crime than the one charged in the indictment and the allocution establishes that the defendant understood the charges against him, a factual basis for the plea is unnecessary ( see People v. Clairborne, 29 N.Y.2d 950, 329 N.Y.S.2d 580, 280 N.E.2d 366; People v. Billings, 60 A.D.3d 961, 962, 874 N.Y.S.2d 826; People v. Richardson, 50 A.D.3d 704, 854 N.Y.S.2d 744; People v. Martin, 239 A.D.2d 436, 437, 658 N.Y.S.2d 341).

SANTUCCI, J.P., BALKIN, BELEN and CHAMBERS, JJ.,...