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

742
KA 13-00718
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JOSEPH J. SCHMIDLI, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered September 20, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of stolen
property in the fourth 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 criminal possession of stolen property in
the fourth degree (Penal Law § 165.45 [1]). Defendant contends that
his plea was not knowingly, voluntarily, and intelligently entered
because he did not admit a necessary element of the crime—that he knew
that the property was stolen—during the plea allocution, and that
County Court erred in denying his motion to withdraw the plea on that
ground. Defendant’s contention is actually a challenge to the factual
sufficiency of the plea allocution that is encompassed by the valid
waiver of the right to appeal (see People v Topolski, 106 AD3d 1532,
1533, lv denied 21 NY3d 1020; People v Daniels, 59 AD3d 943, 943, lv
denied 12 NY3d 852; see generally People v Villar, 115 AD3d 1361,
1361).




Entered:   June 20, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
