People v. Zimmerman

Decision Date29 September 1995
Citation219 A.D.2d 848,631 N.Y.S.2d 951
PartiesPEOPLE of the State of New York, Respondent, v. Gary ZIMMERMAN, Appellant.
CourtNew York Supreme Court — Appellate Division

Richard H. Speranza by Thomas Wilson, Lockport, for appellant.

Matthew J. Murphy, III by Thomas Brandt, Lockport, for respondent.

Before GREEN, J.P., and PINE, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

The record establishes that defendant made a voluntary, knowing and intelligent waiver of his right to appeal (see, People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Streicher, 217 A.D.2d 947, 629 N.Y.S.2d 594). That waiver encompassed defendant's challenges to the factual sufficiency of the plea allocution (see, People v. Cooper, 191 A.D.2d 1046, 595 N.Y.S.2d 353) and the excessiveness of the sentence (see, People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170; People v. Chandler, 214 A.D.2d 1027, 626 N.Y.S.2d 893). Moreover, where, as here, defendant pleads guilty "to a crime lesser than that charged in the indictment, a factual colloquy is not required" (People v. Tirado [appeal No. 1], 214 A.D.2d 1044, 1045, 627 N.Y.S.2d 504; see, People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366; People v. Gould, 207 A.D.2d 989, 617 N.Y.S.2d 687, lv. denied 84 N.Y.2d 1032, 623 N.Y.S.2d 188, 647 N.E.2d 460). Furthermore, even assuming, arguendo, that a factual colloquy were required, we would conclude that defendant's factual recitation was sufficient and that defendant's plea was entered voluntarily, knowingly and intelligently (see, People v. Moissett, 76 N.Y.2d 909, 563 N.Y.S.2d 43, 564 N.E.2d 653). Contrary to the assertion of defendant, the record establishes that defendant acknowledged that he intended to injure the victim seriously when he repeatedly struck her.

Judgment unanimously affirmed.

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9 cases
  • People v. De Jesus
    • United States
    • New York Supreme Court — Appellate Division
    • March 13, 1998
    ...The record establishes that defendant made a voluntary, knowing and intelligent waiver of the right to appeal (see, People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352; People v. DeLuna, 193 A.D.2d 466, 597 N.Y.S.2d 691, lv. deni......
  • People v. Dillard
    • United States
    • New York Supreme Court — Appellate Division
    • June 18, 1999
    ...525 N.E.2d 5). However, defendant pleaded guilty to a reduced charge, and thus no factual colloquy was required (see, People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352; People v. Tirado, 214 A.D.2d 1044, 1044-1045, 627 N.Y.S.2d......
  • People v. Richards
    • United States
    • New York Supreme Court — Appellate Division
    • March 16, 2012
    ...was required inasmuch as defendant pleaded guilty to a crime lesser than that charged in the indictment ( see People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352). It is hereby ORDERED that the judgment so appealed from is unanim......
  • People v. Vallejo
    • United States
    • New York Supreme Court — Appellate Division
    • May 7, 1999
    ...People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 879, 678 N.Y.S.2d 26, 700 N.E.2d 564; People v. Zimmerman, 219 A.D.2d 848, 631 N.Y.S.2d 951, lv. denied 88 N.Y.2d 856, 644 N.Y.S.2d 702, 667 N.E.2d 352). That waiver encompasses defendant's challenge to the factual s......
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