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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GUS OLDHAM, Appellant.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02). Defendant moved to withdraw his plea on a ground different from that raised on appeal, and thus defendant's present contention that the plea was not knowing, intelligent and voluntary is not preserved for our review ( see People v. Mackey, 77 NY2d 846, 847; see generally People v. Ali, 96 NY2d 840, 841). Defendant further contends that Supreme Court erred in failing to make further inquiry concerning a potential defense under Penal Law § 265.20 (a) (3). We reject that contention. Because defendant pleaded guilty to a lesser crime than that charged, a factual basis for the plea was not required ( see People v. McCorkle, 298 AD2d 848, lv denied 99 NY2d 561). In any event, we note that defendant's factual recitation did not indicate that defendant had such a potential defense, and thus the court had no duty to make further inquiry into such a defense ( see generally People v. Lopez, 71 NY2d 662, 666).

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PEOPLE v. OLDHAM
(Dec 22, 2005)