People v. D'Angelo , 535 N.Y.S.2d 765 ( 1988 )

— Yesawich, Jr., J.

Appeals (1) from a judgment of the County Court of Broome County (Coutant, J.), rendered September 30, 1985, convicting defendant upon his plea of guilty of the crime of burglary in the first degree, and (2), by permission, from an order of said court (Monserrate, J.), entered August 14, 1987, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant stands convicted of first degree burglary based upon his involvement in a conspiracy to burglarize George Kolba, Sr., which evolved into a robbery during which Kolba was murdered. Shortly before his case was to go to trial defendant was allowed to plead guilty to the single burglary count in full satisfaction of a seven-count indictment' which included felony murder. Defendant was given the statutory maximum sentence of 8 VS to 25 years’ imprisonment.

On his direct appeal, the only issue defendant raises is the severity of the sentence which he deems excessive. Inasmuch as County Court expressly informed defendant that he would very likely receive a sentence of 8 VS to 25 years before it accepted his plea, in which he admitted conduct that would constitute felony murder as well as the crime of burglary, we find the court did not abuse its discretion (see, People v Du Bray, 76 AD2d 976, 977).

Defendant in his CPL 440.10 motion spins a fanciful tale of police and prosecutorial misconduct which is unsupported by the record. Notably, defendant does not deny committing the salient criminal conduct which he confessed to during his plea allocution and which provides ample grounds for his conviction. Since we find that defendant’s plea was voluntarily, knowingly and intelligently given in the context of an adequate plea allocution, the remaining arguments he raises have been waived as County Court explained more fully in its decision, which we endorse.

Judgment and order affirmed. Casey, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.