        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1243
KA 13-01610
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SCOTT A. MILLIMAN, DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

SCOTT A. MILLIMAN, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered June 25, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted assault in the second degree
(Penal Law §§ 110.00, 120.05 [3]). We note at the outset that,
“ ‘[a]lthough the crime of attempted assault in the second degree
pursuant to Penal Law § 120.05 (3) is a legal impossibility (see
People v Campbell, 72 NY2d 602, 607), a defendant may plead guilty to
a nonexistent crime in satisfaction of an indictment charging a crime
for which a greater penalty may be imposed’ ” (People v McFadden, 28
AD3d 1245, 1245, lv denied 7 NY3d 792). Defendant validly waived the
right to appeal, and that valid waiver encompasses the challenge in
defendant’s main brief to the severity of the sentence (see People v
Lopez, 6 NY3d 248, 256; see generally People v Lococo, 92 NY2d 825,
827). Although defendant’s contention in his main brief that his plea
was not knowingly, intelligently, and voluntarily entered survives his
waiver of the right to appeal (see People v Bishop, 115 AD3d 1243,
1244, lv denied 23 NY3d 1018), we reject that contention. “[T]he plea
allocution as a whole establishes that ‘defendant understood the
charges and made an intelligent decision to enter a plea’ ” (People v
Keitz, 99 AD3d 1254, 1255, lv denied 20 NY3d 1012, reconsideration
denied 21 NY3d 913, quoting People v Goldstein, 12 NY3d 295, 301).
Moreover, “nothing [defendant] said raised the possibility of a viable
justification defense” (People v Spickerman, 307 AD2d 774, 775, lv
denied 100 NY2d 624; cf. People v Ponder, 34 AD3d 1314, 1315).
                                 -2-                          1243
                                                         KA 13-01610

“ ‘[T]he challenge by defendant [in his pro se supplemental brief] to
the sufficiency of the evidence before the grand jury is forfeited by
his guilty plea’ ” (People v Ruffin, 101 AD3d 1793, 1793, lv denied 21
NY3d 1019; see People v Anderson, 90 AD3d 1475, 1477, lv denied 18
NY3d 991). Finally, we have reviewed the remaining contentions in
defendant’s pro se supplemental brief, and to the extent they are
properly before us in the context of defendant’s guilty plea, we
conclude that they are without merit.




Entered:   November 21, 2014                   Frances E. Cafarell
                                               Clerk of the Court
