         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
998
KA 09-01625
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JIMMY L. MONROE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered January 28, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that County Court abused
its discretion in denying his motion to withdraw his guilty plea on
the ground that the plea was not knowing, voluntary, and intelligent
based, inter alia, on the court’s failure to inform him of certain
constitutional rights set forth in Boykin v Alabama (395 US 238, 243).
We reject that contention. We note at the outset that, although
defendant is correct that the court did not address certain rights
that he waived by pleading guilty, the court was not required to do so
(see People v Harris, 61 NY2d 9, 16, 18-19; People v Johnson, 60 AD3d
1496, 1496, lv denied 12 NY3d 926). Instead, “[t]he seriousness of
the crime, the competency, experience and actual participation by
counsel, the rationality of the ‘plea bargain[,’] and the pace of the
proceedings in the particular criminal court are among the many
factors which the Trial Judge must consider in exercising discretion”
during a plea colloquy (Harris, 61 NY2d at 16, citing People v Nixon,
21 NY2d 338, 353, cert denied sub nom. Robinson v New York, 393 US
1067).

     Contrary to defendant’s contention, we conclude that the plea was
knowing, voluntary, and intelligent (see generally Harris, 61 NY2d at
16-19), and thus the court properly denied his motion. The record
establishes that the court properly exercised its discretion during
                                 -2-                           998
                                                         KA 09-01625

defendant’s plea colloquy in light of defendant’s criminal history,
his representation by counsel, and his statements during the plea
colloquy. Defendant had pleaded guilty five times in New York prior
to the current case, thus indicating that defendant was familiar with
the plea process and aware of the rights that he waived by pleading
guilty (see Nixon, 21 NY2d at 350). Defendant was represented by
counsel in the current case, who actively advocated for defendant, and
defendant confirmed that defense counsel had explained his rights to
him. Defendant also indicated that he understood that he had the
right to a trial. Although he did not explicitly waive that right,
his statements demonstrated that he understood that he would not have
a trial.

     Contrary to defendant’s further contention, the sentence is not
unduly harsh or severe.




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
