THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,V JAMES BROWN, DEFENDANT-APPELLANT.JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (KIMBERLY J. CZAPRANSKI OFCOUNSEL), FOR DEFENDANT-APPELLANT.MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OFCOUNSEL), FOR RESPONDENT.Appeal from a judgment of the Wayne County Court (John B.Nesbitt, J.), rendered March 2, 2017. The judgment convicteddefendant, upon his plea of guilty, of assault in the second degree,criminal possession of a weapon in the third degree, recklessendangerment in the second degree and criminal possession of a weaponin the fourth degree.It is hereby ORDERED that the judgment so appealed from isunanimously affirmed.Memorandum: Defendant appeals from a judgment convicting himupon his plea of guilty of, inter alia, assault in the second degree(Penal Law § 120.05 [2]) and criminal possession of a weapon in thethird degree (§ 265.02 [1]). Defendant failed to move to withdraw hisplea or to vacate the judgment of conviction and thus failed topreserve for our review his contention that his plea was not knowingand voluntary because, inter alia, County Court did not inform him ofthe trial rights that he was giving up until after he pleaded guilty(see People v Scott, 151 AD3d 1702, 1702 [4th Dept 2017],lv denied29NY3d 1133 [2017];seegenerallyPeople v Rojas, 147 AD3d 1535, 1536[4th Dept 2017],lv denied29 NY3d 1036 [2017];People v Brown, 115AD3d 1204, 1205 [4th Dept 2014],lv denied23 NY3d 1060 [2014]). Inany event, we reject defendant’s contention. “It is axiomatic thatthe court ‘need not engage in any particular litany’ in order toensure that a defendant makes a ‘knowing, voluntary and intelligentchoice among alternative courses of action’ . . . and, here, therecord establishes that defendant’s plea was a knowing, voluntary andintelligent choice” (Scott,151 AD3d at 1702). The record beliesdefendant’s further contention that his plea was not voluntary orintelligent because the court failed to notify defendant in advance ofhis plea that one of the charges would constitute a violent felonyoffense. Indeed, the record is clear that the assault chargeconstituted the violent felony offense and, contrary to defendant’scontention, the charge of criminal possession of a weapon in the thirddegree was not upgraded to a violent felony offense. Finally, therecord also belies defendant’s contention that the plea was notvoluntary or intelligent because there was confusion regarding theappropriate sentence, inasmuch as “the record reflects that defendantwas aware of the sentence to be imposed” (People v Dickerson, 61 AD3d1220, 1221 [3d Dept 2009],lv denied12 NY3d 924 [2009]).Entered: June 8, 2018 Mark W. BennettClerk of the Court
