People v. Hess , 847 N.Y.S.2d 503 ( 2007 )

Appeal from a judgment of the Orleans County Court (James P Punch, J.), rendered October 2, 2006. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [1]), defendant contends that his plea allocution negated an essential element of the crime to which he pleaded guilty and thus that his plea was not knowingly, intelligently and voluntarily entered. Although that contention survives defendant’s waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Holifield, 34 AD3d 1316 [2006], lv denied 8 NY3d 846 [2007]), we conclude that it is lacking in merit. Even assuming, arguendo, that defendant’s factual allocution initially negated an essential element of the crime and thus that “defendant’s recitation of the facts underlying the crime pleaded to clearly cast[ ] significant doubt upon the defendant’s guilt or otherwise call[ed] into question the voluntariness of the plea,” we conclude that County Court conducted the requisite further inquiry to ensure that defendant understood the nature of the charge and that the plea was intelligently entered (see People v Lopez, 71 NY2d 662, 666 [1988]). Present—Hurlbutt, J.P., Smith, Centra, Green and Pine. JJ.