People v. Phelps
| Decision Date | 23 May 1988 |
| Citation | 140 A.D.2d 637,528 N.Y.S.2d 673 |
| Parties | The PEOPLE, etc., Respondent, v. Mark PHELPS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Carlucci & Legum, Mineola (Robert J. Carlucci, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Aaron F. Fishbein, of counsel; Lauren P. Raysor-Bennett on the brief), for respondent.
Before MOLLEN, P.J., and LAWRENCE, EIBER, SULLIVAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lagana, J.), rendered June 13, 1983, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the adequacy of his plea allocution has not been preserved for appellate review because the defendant did not move to vacate his guilty plea prior to sentencing (CPL 470.05[2]; see, People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938). In any event, the defendant's challenge is without merit. It is well established that a guilty plea can be accepted in the absence of a defendant's personal recitation of all the elements of the charged crime when there is no suggestion on the record that the plea was improvident or baseless ( see, People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709; People v. Langhorn, 119 A.D.2d 844, 501 N.Y.S.2d 470, lv. denied 68 N.Y.2d 758, 506 N.Y.S.2d 1046, 497 N.E.2d 716; People v. Dixon, 119 A.D.2d 831, 501 N.Y.S.2d 457, lv. denied 68 N.Y.2d 769, 506 N.Y.S.2d 1053, 498 N.E.2d 155). There is nothing in the record to indicate that the plea was either baseless or improvident.
We also conclude that given the defendant's criminal background and the seriousness of the charged crime, the sentencing court did not abuse its discretion in denying the defendant's application for youthful offender treatment. Moreover, the defendant cannot be heard to complain that his sentence was excessive since he received the sentence promised to him during the plea proceedings (see, People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351).
We have reviewed the defendant's remaining contentions and find them to be without merit.
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