The final argument urged by the children is that the trust is invalid because of the so-called "merger” doctrine which in effect requires that for a subsisting trust there cannot be a sole trustee and a sole income beneficiary (Matter of Phipps, 2 NY2d 105, 108). The trust, however, does not limit payments to the decedent only, but permits payments of income and distribution of principal to be made in addition to the decedent’s wife and their "lineal descendants.” This would normally be sufficient to obviate any question of the <mask> (Matter of Kagan, 118 Misc 2d 1084). Moreover, while the cases dealing with the merger doctrine do speak of the trust "terminating” or the trust relationship ending (Matter of Reed v Browne, 295 NY 184), the actual result, however, is merely converting the sole trustee/sole income beneficiary’s interest into a legal life estate or tenancy, not the destruction of the remainder interest (Weeks v Frankel, 197 NY 304, 311). For all interests to terminate, the sole income beneficiary must not only be the sole trustee, but also the sole remainder-man (Matter of Bowers, 2 Misc 2d 482). Where that is the factual situation, "[t]he result is a merger, not merely into a legal life estate, Matter of Reed v. Browne, 295 N.Y. 184, 66 N.E. 2d 47, 165 A.L.R. 1061; Weeks v. Frankel, 197 N.Y. 304, 90 N.E. 969, but into a fee simple * * *. The purported trust *954is ineffective” (In re Atkinson’s Estate, 114 NYS2d 808, 809). While the children might then revert back to their first argument that the power to revoke the trust was tantamount to a merger of all interests in the decedent, the simple answer is that interests which are defeasible are nevertheless genuine interests while unrevoked and never having been revoked by the decedent are now unassailable (Pinckney v City Bank Farmers Trust Co., 249 App Div 375, supra).


Additionally, and in any event, the Miles exception above quoted should preclude the judicial extension of the <mask> to any situation involving the detention of hostages for a significant period. (Cf. People v India, 67 AD2d 488.) And this exception should particularly apply to the taking of correction officers as hostages. These officers, of necessity, come in daily contact with inmates, some serving lengthy sentences, who often may feel they have little to lose by attempting to escape. At least let it be known that if any correction officer is used as a shield or hostage in such attempt, the abductor will be severely dealt with.


Subdivision 5 of section 180.10 makes further provision as to the manner in which the court must proceed. The record here is silent as to any <mask> with the defendant which would have led the court to be satisfied that the defendant made a decision to proceed without counsel and to waive an examination with full knowledge of the significance of that decision and its consequences.


*446The law does not entitle the defendant to disavow her confessions to her factual guilt merely because the People may have had a case weaker than anticipated. (Brady v United States, 397 US, at 757, supra.) The defendant’s decision in this case to forego litigation by pleading guilty must stand because her plea <mask> was legally sound, the record establishes unequivocally that she was, in fact, guilty of the crime of which she was convicted, because of the nature of the undisclosed evidence, and because she has not shown its materiality under Armer (supra), Miller (supra) and Tate (supra). Thus, the judgment in this case shall remain undisturbed.


*8657. Corroborative of Abdela’s statement that she kicked the deceased causing him to fall backward were the autopsy report and photographs of the deceased. The People’s Medical Examiner testified that three distinct contusions to the deceased’s right thigh were consistent with a kick from Abdela’s roller blades, and thus independently supported Abdela’s statement in the <mask> that she kicked the deceased’s legs out from under him;


During his plea <mask>, defendant stated that he had been provided sufficient time to discuss his guilty plea with his attorney, that he was satisfied with the representation that he had received from his attorney, and that he was convinced that it would be better to plead guilty than to go to trial. Defendant also stated that no one had threatened him or coerced him into pleading guilty, that he was entering the plea of his own free will, and that he did not have any questions for the court or his attorney or anyone else before pleading guilty.


Thus, this court, under the established First Department, Appellate Division and Court of Appeals precedents, relies on People v Serrano (supra) and People v Harris (supra) in determining that the defendant’s prior plea <mask> was insufficient to serve as the constitutional basis for a predicate felony sentence, and cannot enhance defendant’s sentence herein. Thus, for the reasons set forth hereinabove, this court determines, as a matter of fact and law, that defendant sustained his burden of proof under CPL 400.21.


Abraham G. Gerges, J. Defendant moves to vacate the judgment on the ground that defendant’s plea <mask> did not establish his intent to murder the victim and that the Court failed to advise him that after completing his incarceration he would be required to serve a period of postrelease supervision. The defendant also moves to vacate the judgment on the ground that he received ineffective assistance of counsel when counsel failed to tell him that intent to kill was an element of attempted murder in the second degree, when counsel failed to advise him that he was subject to postrelease supervision and when counsel failed to negotiate a reduction of the amount of postrelease supervision time he will be required to serve.


Therefore, to the extent that, in De Jesus II, this court credited information set forth in the PSI where inconsistent with defendant’s testimony (at *10), this court now acknowledges that it overlooked the inaccuracies in the PSI as to the dates of defendant’s marriages to her first and current husbands and that the siblings with whom she enjoyed a close relationship resided in the United States at the time of her plea, and misapprehended that the PSI was wholly reliable as a factual source. Proper resolution of these discrepancies is significant, in that they, together with the fact that defendant’s children were on the verge of legal entry into the United States, are pertinent to whether defendant had stronger family ties to this country *758than to her country of origin which, if true, would have rendered the immigration consequences of her plea important to her had she known of them at the time of her plea <mask>. Accordingly, on this motion, the court, having been made aware of the inaccuracies in the PSI and therefore deeming it unreliable with respect to the issues of her family ties to the United States, finds defendant’s testimony credible and the PSI not credible on these issues to the extent that there are any material factual discrepancies between the two.


“Reference to Vasquez’s conduct, as opposed to his identity . . . was relevant in establishing the extent of Abdela’s criminal liability, and did fall within the hearsay exception ... “In sum, Abdela’s description of Vasquez’s acts, which occurred simultaneously with her own, was inextricably intertwined with the description of her own acts, in that the combined actions demonstrate Abdela’s mens rea as set forth in the <mask> to first degree manslaughter. Moreover, reference to those same acts establishes the manner in which the death was caused; that is, Abdela was acting in concert with another in the commission of the crime. Therefore, since Abdela’s description of Vasquez’s actions was not superfluous to her manslaughter plea, but was, in fact, essential to its validity, and since such description established elements of the homicide charges, I found the entire factual portion of the allocution fell within this hearsay exception and was admissible.” (179 Misc 2d at 865-867.) “During the trial, the circumstances surrounding the taking of the plea allocution, as well as the chronology of preceding meetings between Abdela and law enforcement officials, were explored by defense counsel. A limiting instruction was given to the jury, both at the time that the evidence was admitted on the People’s direct case, as well as during the court’s final charge, regarding the purpose *769for which the jury was to consider this evidence, as well as the manner in which they were to assess its trustworthiness and reliability.” (Vasquez, 179 Misc 2d at 867 n 6.) I then ruled that:


The defendant was accused of robbing two banks and attempting to rob a third bank. Charged with multiple felony counts, the defendant was to plead guilty to attempted robbery in the second degree, in full satisfaction of the indictment, with the understanding that he would receive a certain sentence. After a plea <mask>, the Supreme Court stated that the plea was acceptable to the court, but the prosecutor, in effect, objected to the allocution. After making further inquiry of the defendant, the court stated that the plea was acceptable to the court if it was acceptable to the People. The prosecutor, in effect, objected again, stating his belief that the allocution was not legally sufficient. The matters then proceeded to a jury trial, after which the defendant was convicted of two counts of robbery in the first degree, attempted robbery in the first degree, two counts of robbery in the third degree, and attempted robbery in the third degree.


While defendant’s further claims—that he was not mentally competent to enter a plea and that his counsel was ineffective for failing to request a competency hearing—survive his appeal waiver because they impact the voluntariness of his plea (see People v McFarren, 83 AD3d 1209, 1210 [2011], lv denied 17 NY3d 860 [2011]), defendant did not preserve them by a proper post<mask> motion (see People v Shiels, 93 AD3d 992, 992 [2012]; People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 [2012]; People v McFarren, 83 AD3d at 1210; People v Budwick, 82 AD3d at 1448; People v Coons, 73 AD3d 1343, 1344 [2010], lv denied 15 NY3d 803 [2010]; People v Gomez, 72 AD3d 1337, 1338 [2010]). Moreover, the narrow exception to the preservation requirement was not implicated, as defendant did not make any statements during the plea colloquy that cast doubt on his guilt or otherwise called into question the voluntariness of his plea (see People v Borden, 91 AD3d at 1125; People v Coons, 73 AD3d at 1344).


It should be noted, however, that the jurisdictional error in this case has nothing to do with the defendant’s guilt or innocence. During the <mask>, the defendant fully admitted committing acts which would support a conviction for the misdemeanor auto stripping charge. He was also sentenced to the promised four months’ jail in accordance with his negotiated plea. Prior to the subject plea, the defendant had pleaded guilty in at least seven previous cases, four of which appear to relate to car break-ins under similar circumstances as the instant offense. Accordingly, the defendant is certainly not a novice to the criminal justice system and he is experienced with the procedural manner in which a plea is taken and its consequence (see, People v Gonzalez, 156 AD2d 135 [1st Dept 1989]). The defendant has never asserted his innocence to the auto stripping charge nor is such an assertion contained in his moving papers. What he seeks now is the benefit of avoiding the more serious treatment the law affords his most recent crime given his prior commission of that same conduct.


Carolyn E. Demarest, J. *484On November 22, 1995, Jeffery B. was indicted on charges of sodomy in the first degree and sexual abuse in the first degree committed on October 26, 1995. On October 26, 1995, Jeffery B. was 14 years old, having been born on June 23, 1981. He was thus subject to prosecution in Supreme Court by virtue of CPL 1.20 (42) which defines a “juvenile offender” as “a person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in * * * subdivisions one and two of section 130.50 (sodomy in the first degree)”. On July 24, 1996, defendant Jeffery B. and a codefendant, Jamara Webster, who was over the age of 16 at the time of the crime, pleaded guilty before this court to the crime of sexual abuse in the first degree under Penal Law § 130.65 on a promise, recommended by the District Attorney, that this defendant be “sentenced” to a conditional discharge and be adjudicated a youthful offender. The crime of sexual abuse in the first degree is not a felony designated within the Criminal Procedure Law or Family Court Act § 301.2 (8) as an exception to the defense of infancy, subjecting a person under the age of 16 to criminal prosecution. Legally, therefore, Jeffery B. could not be criminally adjudicated a “juvenile offender” and could not be sentenced, pursuant to CPL article 720, as a youthful offender upon his plea to sexual abuse in the first degree. (See, CPL 720.10 [definition of youthful offender].) Nonetheless, on September 11, 1996, defendant Jeffery B. appeared for sentencing before this court and, based upon a probation report, and at the urging of the District Attorney, was adjudicated a youthful offender and sentenced, pursuant to the promise at the <mask>, to a conditional discharge. An order of protection was issued for complainant. The sentencing document indicates that the conditional discharge, which began on the 11th of September 1996, would expire on September 10, 1999, a period of three years, consistent with Penal Law §§ 60.02 and 65.05 (3), applicable to a youthful offender guilty of this crime.


During the plea proceeding, the defendant’s attorney stated to the court that "at the time of sentencing, I would ask the District Attorney’s office” to provide the defendant with the originals of certain tapes, and the Assistant District Attorney *556stated, "[a]t sentencing, we have no objection”. At sentencing, the People stated that they were unable to provide the original tapes because they were required as evidence in another case. The defendant then applied to withdraw his plea of guilty, and the court denied the application. This was proper. Contrary to the defendant’s contention on appeal, the quoted exchange was not part of the plea agreement. It took place after the plea <mask> was completed, and in any event, was merely a precatory request, not a term of the agreement. This case is therefore distinguishable from those in which a defendant has been allowed to withdraw his plea of guilty because he was denied "the full benefit of his negotiated plea” (People v Ward, 174 AD2d 589; see also, People v McConnell, 49 NY2d 340; People v Selikoff, 35 NY2d 227, cert denied 419 US 1122; People v John C., 184 AD2d 519). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.


Upon Martinez’s death, the prosecution, pursuant to CPL 40.20, secured an indictment of Ortiz for murder in the second degree (Penal Law § 125.25 [1]). The prosecution seeks permission to use, at the murder trial, as evidence in its case-in-chief the factual admissions Ortiz made as part of his guilty plea to the assault charge. Consequently, the issue now before this court is whether it is permissible to use the <mask> made by a defendant in one proceeding against him in another proceeding, where the defendant has not been advised of its potential use against him subsequently, and where the subsequent proceeding involves the same res gestae.2


A person is guilty of resisting arrest when she intentionally prevents or attempts to prevent law enforcement personnel from carrying out an authorized arrest of herself or another (Penal Law § 205.30). Civil assault, on the other hand, is defined as intentionally placing another in fear of imminent harmful or offensive contact, and civil battery is actually and intentionally making that wrongful physical contact without consent (United Natl. Ins. Co. v Waterfront N.Y. Realty Corp., 994d 105, 108 [2d Cir 1993]). This is not the case of a criminal assault conviction precluding a defense against similar allegations in a civil assault action (see e.g. Olsson v MacDonald, 16 AD3d 1017 [2005]), where the identity of issue is beyond question. An *64ambiguous plea <mask> admitting to a “struggle” in criminally resisting arrest is insufficient for collateral estoppel purposes in the context of a civil assault and battery action, without elevating that word to the status of a yet-undefined legal term of art. There was no identity of issue here (see Charkhy v Altman, 252 AD2d 413 [1998]).


Whether omission of an essential element (force) of a felony *607(robbery in the second degree — Penal Law § 160.10) by defendant, represented by counsel, and the court during the factual <mask> of a guilty plea to a prior felony conviction is legally sufficient as the constitutional basis for a predicate felony sentence? An issue of first impression in the First Department.


Thereafter, with the District Attorney’s consent and following a full <mask>, the defendant entered a guilty plea to second degree murder and first degree robbery in full satisfaction of the indictment relating to the death of Louis Thumudo. The defendant was promised consecutive sentences of 25 years to life and 10 years to run consecutively to the sentences promised on the Capobianco indictment. Smelefsky was read and signed a waiver of appeal in each case and, upon his admission, was adjudged a second violent felony offender. The cases were then adjourned for sentence.


On February 17, 1977, the defendant pleaded guilty to criminal sale of a controlled substance in the third degree. On that day, the court, having before it a prepleading investigation report prepared by the Probation Department, sentenced defendant to an indeterminate term of imprisonment, the minimum of which was one year and the maximum of which was life imprisonment. Prior to the imposition of sentence, defendant’s counsel was given the complete written probation report with ample opportunity to study it and to comment upon it during the sentencing <mask>.


*297Defendant’s sentence was to an indeterminate period of not less than three years, nor more than six years. The original promise of two and one-half years to five years was not honored, as per the warning given by the court, at the <mask> and acceptance by the court of the plea, that all commitments regarding sentence would be off, if defendant did not appear for sentence. At the time of sentence, a violation of probation was also pending. The court was unable to proceed on that charge since the defendant had not been arraigned on the charge of violation of probation and a bench warrant was ordered by the court, that matter to be considered by this court at a future date.


Per Curiam. Respondent was admitted to practice law at the First Judicial Department in 1975, and has maintained an office for such practice within this Department at all relevant times since then. In May 1994 respondent pleaded guilty, in United States District Court for the Eastern District of New York, to three counts of mail fraud (18 USC § 1341) and one count of tax evasion (26 USC § 7201). Each of these counts is a Federal felony (18 USC § 3559), but there is no New York felony analog (Matter of Teplin, 82 AD2d 296, 297; see, Matter of Levine, 168 AD2d 116). Thus, disbarment is not automatic (cf., Judiciary Law § 90 [4] [b]), and a "serious crime” inquiry would normally be warranted (subd [4] [d]), unless the criminal conduct admitted to in the Federal plea <mask> satisfies the elements of a New York felony.


According to defendant, when he attempted to leave, the victim shot him as he turned to walk away after the robbery. Later in the plea <mask>, defendant admitted that, after the complainant had identified himself as a police officer and instructed him to freeze, defendant turned and pointed his gun at the officer, who shot him. Medical records reflect that the wound entered defendant’s abdomen and exited his back. The promised sentence was based upon information from defendant that this was his first and only conviction. Included in the plea minutes is the following:


Respondent’s appeal in this proceeding under Family Court Act article 3 focuses on the sufficiency of the plea <mask>. The record shows that prior to accepting respondent’s admission that he committed acts, which if had been committed by an adult, would have constituted the crime of sexual abuse in the second degree, Family Court asked respondent if his Law Guardian had advised him of his rights. Respondent indicated that she had. Family Court then proceeded to elicit statements from respondent establishing that he committed the act to which he was entering the admission (see, Family Ct Act *801§ 321.3 [1] [a]). Following a dispositional hearing, respondent was placed in the custody of the Sullivan County Department of Social Services for residential placement for up to one year.


Defendant’s reliance upon Padilla v Kentucky is misplaced. Initially, defendant overstates the Supreme Court’s ruling in Padilla. Having conceded that the use of defendant’s plea <mask> at a subsequent prosecution is a collateral consequence, defendant cites Padilla for the proposition “that counsel must warn clients of potential adverse collateral consequences before accepting guilty pleas.” (See defendant’s motion at 6.) However, Padilla makes no such pronouncement. In Padilla, in determining that counsel is constitutionally required to apprise her client of the immigration consequences of a plea (when those consequences are succinct, clear and explicit), the Court relied on the sui generis nature of deportation — the severity of the penalty and the automatic way it follows from conviction — to show that the collateral versus direct distinction *585was ill-suited to dispose of Padilla’s claim. (See Chaidez, 568 US at —, 133 S Ct at 1112.) Similarly, in People v Peque, the Court of Appeals struggled to find a home for deportation in the direct/collateral divide. In Peque, in determining that a trial court is constitutionally required to apprise non-citizen defendants of the possibility of deportation prior to entering a guilty plea, the Court found that although deportation is “technically on the collateral side of the direct/collateral divide” it fell within a rare case exception to the usual rule that, if collateral, there is no constitutional duty on a trial court to apprise. (See People v Peque, 22 NY3d at 192.) In holding that due process still requires a trial court to warn defendant of the immigration consequences of his or her plea, the Court emphasized the “truly unique nature of deportation as a consequence of a guilty plea” and explicitly stated, “there is nothing else quite like it.” (Id. at 196.) Thus, if there is one thing that Padilla and Peque actually make clear, it is that deportation is a sui generis consequence of a plea, and thus, contrary to defendant’s assertion, neither case has extended categorically an attorney’s or a trial court’s duty to apprise a defendant of all adverse collateral consequences of a guilty plea.


In Wilkins, the Court held that a defendant had the right to question the validity of a predicate felony conviction at a hearing held pursuant to People v Montgomery (24 NY2d 130 [1969]), for the purpose of determining whether a defendant had been advised of the right to appeal at the defendant’s plea <mask>. (People v Wilkins, 28 NY2d at 218.) Resentencing would take place only upon a determination that the defendant had not been so advised. {Id.)


Defendant's claim of coercion based upon the advisement that he could face more serious charges if he did not accept the plea offer is, in fact, raised on this direct appeal, and, as previously noted, found to be unpreserved for direct appellate review (see CPL 440.10 [3] [a]); his remaining conclusory claim that counsel pressured him is unsupported by any evidence and contradicted by his assurances to the court during the plea <mask> (see People v Stanley, 189 AD3d at 1819). Defendant did not submit an affidavit from trial counsel or explain its absence (see People v Stanley, 189 AD3d at 1819; People v Betances, 179 AD3d 1225, 1226 [2020], lv denied 35 NY3d 968 [2020]). Given that most of the contentions in the motion could have been — and in some instances have been raised upon defendant's direct appeal, they are not properly the subject of a CPL article 440 motion (see People v Chaney, 160 AD3d at 1285). Notably, denial of defendant's motion is consistent with "the purpose served by a CPL article 440 motion[, which] is to inform a court of facts not reflected in the record and unknown at the time of the judgment. By its very nature, the procedure cannot be used as a vehicle for an additional appeal" (People v Durham, 195 AD3d at 1320 [internal quotation marks, brackets and citation omitted]).


*789I hold that the collateral estoppel doctrine should apply to preclude de nova review of the Federal conviction pursuant to CPL 400.15 and 400.21. Moreover, even when examined under New York law, the defendant’s plea was knowingly and voluntarily made. The plea <mask> complied with the constitutional standards as interpreted by this State. It is not incumbent upon a trial court to apply a more stringent standard to assess defendant’s competency to plead guilty as opposed to going to trial. No persuasive evidence has been adduced to rebut the presumption of regularity surrounding the Federal proceedings. For these reasons, the defendant’s 1971 Federal bank robbery conviction may be used as a predicate violent felony for sentence enhancement purposes.


During her <mask> related to the facts of the commission of the crime, defendant even corrected the court as to the payment which she agreed to make to one of the codefendants, indicating that she was listening to the court’s questions and intelligently focused on the inquiry. Thereafter, the court determined that the defendant’s plea was knowingly, voluntarily and intelligently offered.


546 F.2d at 1249; see id. (“[E]ven if the trial judge here had not waited as long as he did but had proceeded immediately to find the appellant in contempt, he should have first explicitly warned the appellant of the consequences of his continued refusals and should have afforded him the right of <mask>.”). And in Taylor, the Supreme Court wrote that: [R]easonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are basic in our system of jurisprudence. Even where summary punishment for contempt is imposed dur- ing trial, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.


Defendant also claims that the indictment was jurisdiction-ally defective. Although such claim survives both his guilty plea and appeal waiver, it is nonetheless without merit (see People v Martinez, 106 AD3d 1379, 1379 [2013], lv denied 22 NY3d 957 [2013]; People v Kamburelis, 100 AD3d 1189, 1189-1190 [2012]). Finally, defendant’s challenge to the factual sufficiency of his guilty plea is both precluded by his appeal waiver and unpreserved for our review due to his apparent failure to make an appropriate post<mask> motion (see People v MacDonald, 113 AD3d 968, 968 [2014]; People v Durham, 110 AD3d 1145, 1145 [2013]; People v Sylvan, 107 AD3d 1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]). Contrary to defendant’s contentions, he said nothing during the plea colloquy that would bring this case within the narrow exception to the preservation rule (see People v MacDonald, 113 AD3d at 968; People v Sylvan, 107 AD3d at 1045).


On the instant motion, defendant contends that the Supreme Court in Apprendi v New Jersey (supra), either implicitly overruled, or substantially limited, its earlier holding in Almendarez Torres v United States (523 US 224 [1998]), a case which permitted enhanced sentencing based upon a judicial finding of prior convictions, in a fashion which makes the New York statutory mandatory persistent violent felony sentencing scheme unconstitutional. Specifically, defendant argues that the Apprendi majority, in holding that any sentencing factor other than a prior conviction which enhances a defendant’s sentence must first be included in an indictment and found by a jury beyond a reasonable doubt, limited Almendarez-Torres to its “unique facts,” which defendant construes to require the establishment of the facts of the prior convictions through the defendant’s own guilty plea <mask> in the case in which sentence is to be pronounced. Since in the instant case, defendant Miles did not admit to his two prior violent felony convictions during the course of a guilty plea allocution, and in fact, contested his guilt of the instant offense at a trial by jury, the exception of Almendarez-Torres is inapplicable, he claims, and Apprendi required the People to prove his two earlier violent felony convictions to the satisfaction of the jury beyond a reasonable doubt.


Thus, defendant, who did not admit using "force”, an essential element under Penal Law § 160.10, did not knowingly and voluntarily plead guilty to the violent felony of robbery in the second degree. Surely, defendant did not adopt nor incorporate his adversarial prosecutor’s previous remarks to the court, which referred to the use of a knife during the robbery. If so adopted, the question is relevantly raised whether defendant was actively or effectively represented by counsel. This court does not reach, as moot, defendant’s additional contention that the factual <mask> as to the lesser included offense of grand larceny in the third degree (Penal Law § 155.30) was constitutionally insufficient.


*83Defendant has effectively waived his claim that his plea <mask> might have placed him within the preservation exception of People v Lopez (71 NY2d 662 [1988]), since he did not raise a Lopez issue in his affidavit of errors (see People v Klein, 7 NY2d 264 [1959], supra). We note that the plea allocution, as summarized in the lower court’s return, would not entitle him to relief under Lopez (see People v Lopez, 71 NY2d at 666). Furthermore, and contrary to defendant’s contention, although the record contains his statements to the Probation Department and to another entity, these statements did not trigger a sua sponte duty on the part of the court, under Lopez, to conduct an inquiry (see People v Kelly, 50 AD3d 921 [2008]; People v Sands, 45 AD3d 414 [2007]).


This court does not seek to penalize society by an unreasonably narrow application of constitutional principles in the original conviction situation. These resulting penalties are the costs of reprosecuting the defendant a second time and the ensuing delay by the eventual appeal which would deny fair, swift and certain justice, under an administrative cost-benefit analysis. Further, this court decision does not, by content or consequences, increase the fear that successful challenges of plea convictions after guilty pleas will unravel the entire criminal justice system. Society is not so penalized nor is the plea bargaining system so threatened in the predicate sentencing (second or third conviction) situation by simply requiring that the court carefully enforce a defendant’s constitutional rights during a guilty plea <mask>.


Even assuming that the Federal or New York State Constitution imposes a duty upon counsel or the trial court to warn defendant with respect to this particular consequence of his plea, or even assuming that plea counsel misadvised defendant regarding the subsequent use of his factual admissions, defendant’s motion still would fail as he has not established a reasonable probability that he would not have pleaded guilty if warned by counsel that his plea <mask> could be used at a subsequent trial for murder. Although defendant avers that had he known of the potential prosecution, he would not have pleaded guilty, the favorable sentence he received pursuant to his plea undermines the credibility of this statement. Had he gone to trial and been convicted of both attempted murder in the second degree and bribery in the second degree, defendant faced consecutive terms that could expose him to twice the sentence he was promised under the plea agreement. Thus, it is no surprise that defendant chose to plead guilty. The court therefore rejects as not credible defendant’s claim that he would not have pleaded guilty had he known that his plea allocution could be used against him at a subsequent murder trial. To the contrary, defendant has failed to establish that he was prejudiced by the absence of this advice in plea counsel’s representation.


JUSTICE THOMAS, dissenting. This Court may review “[f]inal judgments or decrees ren- dered by the highest court of a State” only where, as rele- vant here, a federal right “is specially set up or claimed” in the state court. 28 U. S. C. §1257(a). Because Darrell Hemphill did not raise his Sixth Amendment claim in the New York Court of Appeals, we lack jurisdiction to review that court’s decision. I respectfully dissent. I Under New York case law, a trial court may generally ad- mit otherwise inadmissible evidence if a party has “opened the door” to its introduction at trial. People v. Massie, 2 N. Y. 3d 179, 180, 809 N. E. 2d 1102 (2004) (internal quota- tion marks omitted). A party “opens the door” when he pre- sents “evidence or argument” that is “incomplete and mis- leading,” and responsive evidence is necessary to “correct the misleading impression.” Id., at 184, 809 N. E. 2d, at 1105. In People v. Reid, 19 N. Y. 3d 382, 388, 971 N. E. 2d 353, 357 (2012), the New York Court of Appeals held that this door-opening doctrine permits a trial court to admit testimonial hearsay otherwise barred by the Sixth Amend- ment’s Confrontation Clause. In this case, invoking Reid, the trial court permitted the prosecution to introduce Nich- olas Morris’ plea <mask> to rebut Hemphill’s defense that Morris possessed the murder weapon. See ante, at 3–5. 2 HEMPHILL v. NEW YORK


James A. Yates, J. Anselmo Helliger is charged with murder in the second degree (depraved indifference) and manslaughter in the first degree (intent to cause serious physical injury). By the defendant’s own admission and testimony, he came home late, after drinking with friends, and, when criticized by the woman with whom he lived, Diane Murray, he “held her by the neck to push her away”, and shoved her to the bed to “keep her quiet”. Ms. Murray suffered a fractured hyoid bone and died almost immediately. Mr. Helliger admitted causing Ms. Murray’s death, however, two attempts at an <mask> as part of a plea to the manslaughter count, urged upon the court by the parties, failed because, on each occasion, Mr. Helliger insisted that he “never meant to hurt her”.


of words or phrases is essential’ ” for satisfying the presen- tation requirement, so long as the claim is “ ‘brought to the attention of the state court with fair precision and in due time.’ ” Street v. New York, 394 U. S. 576, 584 (1969) (quot- ing New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67 (1928)). Hemphill has satisfied this requirement. At every level of his proceedings in state court, Hemphill argued that the admission of Morris’ plea <mask> violated his Sixth Amendment right to confrontation as interpreted by this Court in Crawford. Before the trial court, Hemphill timely objected that admission of the plea allocution would be “a Crawford violation.” App. 160. Before the Appellate Divi- sion, he argued that the trial court “denied Mr. Hemphill his 6th Amendment right to confront the witnesses against him.” Supp. App. to Brief in Opposition SA108. And before the Court of Appeals, he contended that “[t]he Appellate Di- vision’s analysis,” which had affirmed the trial court’s ad- mission of the plea allocution, “is absurd in the context of the Confrontation Clause, the purpose of which is to afford the accused the right to meaningfully test the prosecution’s proof.” App. 388. “Once a federal claim is properly pre- sented, a party can make any argument in support of that claim.” Yee v. Escondido, 503 U. S. 519, 534 (1992). The Court may therefore consider any argument Hemphill raises in support of his claim that he did not “forfei[t] his right to exclude evidence otherwise barred by the Confron- tation Clause” by “open[ing] the door to responsive evi- dence.” Pet. for Cert. i.2 —————— 2 According to the dissent, Hemphill did not present his constitutional


To the extent that defendant contends that County Court erred in accepting his plea because the record lacked the " 'strong evidence of actual guilt' " that would be required for an Alford plea (People v Elliott, 107 AD3d 1466, 1466 [4th Dept 2013], lv denied 22 NY3d 996 [2013]), we conclude that defendant's contention is misplaced inasmuch as he did not enter an Alford plea (see People v Gale, 130 AD2d 588, 588 [2d Dept 1987]). Insofar as defendant challenges the factual sufficiency of the plea <mask>, that challenge is encompassed by his valid waiver of the right to appeal (see People v Oliver, 178 AD3d 1463, 1464 [4th Dept 2019]; People v Steinbrecher, 169 AD3d 1462, 1463 [4th Dept 2019], lv denied 33 NY3d 1108 [2019]).


Solomon H. Katz, J. The prosecution herein sought to admit into evidence, over the objection of defense counsel, portions of the minutes of a codefendant’s plea <mask>, for the limited purpose of proving that defendant was aided by another person actually present, a necessary element of the crime of robbery in the second degree under subdivision 1 of section 160.10 of the Penal Law.


We affirm. Defendant’s valid waiver of the right to appeal his conviction and sentence, which he does not challenge, forecloses his claims of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance directly affected the voluntariness of his plea (see People v Ildefonso, 89 AD3d 1327, 1327 [2011]; People v Santos-Rivera, 86 AD3d 790, 790 [2011], lv denied 17 NY3d 904 [2011]). Such claims regarding the voluntariness of his plea are unpreserved for review, however, as the record does not reflect that defendant made an appropriate post<mask> motion (see People v Aitken, 101 AD3d 1383, 1384 [2012], lv denied 21 NY3d 1040 [2013]; People v DeJesus, 96 AD3d 1295, 1295 [2012]). Defendant’s remaining claim, that his sentence is harsh and excessive, is foreclosed by his valid waiver of the right to appeal (see People v Marshall, 108 AD3d 884, 884 [2013], lv denied 22 NY3d 957 [2013]; People v Passino, 104 AD3d 1060, 1061 [2013], lv denied 22 NY3d 1157 [2014]).


We affirm. Defendant’s argument that County Court coerced *1343him into pleading guilty is unpreserved due to his apparent failure to make an appropriate post<mask> motion (see People v Jones, 114 AD3d 1080, 1081 [2014]; People v Feliciano, 108 AD3d 880, 881 [2013], lv denied 22 NY3d 1040 [2013]). Inasmuch as he made no statements during the plea allocution that were inconsistent with his guilt or negated any elements of the crime to which he pleaded guilty, the narrow exception to the preservation rule is not applicable (see People v Jones, 114 AD3d at 1081). In any event, County Court did not engage in coercive conduct by advising defendant of his sentence exposure or warning him that plea negotiations were “finished” once the case was placed upon the trial calendar (see People v Feliciano, 108 AD3d at 882; People v Rivera, 290 AD2d 730, 731 [2002]).


. That the defendant knowingly and voluntarily waived his right to have the Grand Jury consider his case is further evidenced by the fact that when the Judge conducted the <mask> of the defendant concerning the plea, among the questions he asked were whether the defendant understood that by entering a plea of guilty the defendant was giving up his “right to have this case presented to the grand jury and * * * to testify before the grand jury,” to which the defendant replied, “Yes.”


In this State, the cases for ther most part support the proposition that a defendant must knowingly and voluntarily enter his plea, but not that a particular <mask> on the plea is mandatory. (People v Nixon, 21 NY2d 338, cert den sub nom. Robinson v New York, 393 US 1067; People v Francis, 38 NY2d 150; People v Jones, 81 AD2d 22; People v Allen, 79 AD2d 1004.)


“there is proof of a separate intent to enter the complainant’s home and steal property, thereby committing the crime of burglary in the third degree. Defendant committed the subsequent crime of impersonation of a police officer after he had completed the burglary and was attempting to escape the witnesses who had confronted him outside of the residence” (People’s first amended mem of law at 5). The allegations in the indictment and defendant’s plea <mask>, however, do not support the People’s contention that the crimes involved two separate and distinct acts. To the contrary, the fourth count of the indictment charging defendant with criminal impersonation in the first degree states


Plaintiffs first contend that they are entitled to summary judgment against defendant Yolanda Silvera based upon collateral estoppel because Silvera’s “plea <mask> and Certificate of Disposition make it perfectly clear that she recklessly operated the subject vehicle and, that in doing so, she caused serious physical injury to Plaintiffs.” In support, plaintiffs proffer, among other things, a certificate of disposition indictment from Supreme Court, Queens County, indicating that defendant Yolanda Silvera pleaded guilty to Penal Law § 120.10 and was sentenced on March 11, 2011 to nine years’ imprisonment. Plaintiffs submit a copy of the transcript of Yolanda Silvera’s plea allocution, in which she admits that by pleading guilty, she is admitting


No. 20–637. Argued October 5, 2021—Decided January 20, 2022 In April 2006, a stray 9-millimeter bullet killed a 2-year-old child after a street fight in the Bronx. Eyewitnesses described the shooter as wear- ing a blue shirt or sweater. Police officers determined Ronnell Gilliam was involved and that Nicholas Morris had been at the scene. A search of Morris’ apartment revealed a 9-millimeter cartridge and three .357- caliber bullets. Gilliam initially identified Morris as the shooter, but he subsequently said that Darrell Hemphill, Gilliam’s cousin, was the shooter. Not crediting Gilliam’s recantation, the State charged Morris with the child’s murder and possession of a 9-millimeter handgun. In a subsequent plea deal, the State agreed to dismiss the murder charges against Morris if he pleaded guilty to a new charge of possession of a .357 revolver, a weapon that had not killed the victim. Years later, the State indicted Hemphill for the child’s murder after learning that Hemphill’s DNA matched a blue sweater found in Morris’ apartment shortly after the murder. At his trial, Hemphill elicited undisputed testimony from a prosecution witness that police had recovered 9-mil- limeter ammunition from Morris’ apartment, thus pointing to Morris as the culprit. Morris was not available to testify at Hemphill’s trial because he was outside the United States. Relying on People v. Reid, 19 N. Y. 3d 382, 388, 971 N. E. 2d 353, 357, and over the objection of Hemphill’s counsel, the trial court allowed the State to introduce parts of the transcript of Morris’ plea <mask> to the .357 gun possession charge as evidence to rebut Hemphill’s theory that Morris committed the murder. The court reasoned that although Morris’ out-of-court statements had not been subjected to cross-examination, Hemphill’s arguments and evidence had “opened the door” and admission of the statements was reasonably necessary to correct the misleading im- pression Hemphill had created. The State, in its closing argument, cited Morris’ plea allocution and emphasized that possession of a .357 2 HEMPHILL v. NEW YORK


At the time of her plea, Abdela had no discernable motive or need to falsely implicate her codefendant. She did not stand to gain anything by inculpating defendant Vasquez. She had done so since the beginning. A comparison of Abdela’s plea <mask> with her prior statements to law enforcement officials reveals that she consistently described Vasquez as the knife wielder. What changed was the extent of her participation in the crime. Far from diminishing her culpability at Vasquez’s expense, her allocution moved her from the status of a witness to an active participant, thereby increasing her potential criminal liability. The fact that Abdela’s active role was not initially disclosed does not render the allocution unreliable. It was entirely possible that a complete account of the events of May 23, 1997 was revealed gradually.


At trial, the People called Rivers as a witness. After he invoked, outside the presence of the jury, his Fifth Amendment privilege not to testify, the portion of the <mask> summarized above with Woods’ and Hopkins’ names redacted to “A” and “B,” respectively, was read to the jury. The trial concluded with defendant Woods being convicted of assault in the third degree and defendant Hopkins of robbery in the second degree and criminal possession of stolen property in the third degree. This opinion is being issued to supplement and further explain the court’s trial rulings with respect to the admission and use of the allocution.


In the stipulation of settlement and judgment, the ultimate determination as to when overnight visitation would commence *720on an overnight basis was left to the parents after consultation with Dr. Meyers. The court, in its <mask> though, made it clear that there had to be some fixed date for the visitation to start and also, as stated on prior occasions, that the ultimate decisionmaker in a matrimonial action or custody dispute is not the expert but the court.


We further find no merit in defendant’s contention that County Court was required to hold a hearing (see, People v McClain, 32 NY2d 697). Defendant never asserted his innocence of the crime to which he had pleaded guilty. We find that County Court, having questioned defendant concerning his desire to withdraw his plea after reviewing the minutes of the plea <mask>, correctly determined that no hearing was necessary (see, People v Fiumefreddo, 82 NY2d 536).


. The People also insisted that the plea <mask> need not be redacted to excise from it Miller’s statement that the defendant had participated in the robbery. The defendant insisted that the redaction was necessary. (See People v Thomas, supra, 68 NY2d at 200-201.) Because I found that Miller was available as a witness at the trial, I did not reach this question.


In People v Johnny P. (112 Misc 2d 647), the court made such a statutory interpretation. Noting that section 390 of the Judiciary Law authorizes the appointment of sign language interpreters, the court determined that the statutory prerogative to make temporary appointments under Judiciary Law § 387 was not limited to instances of language barriers, but *250extends as well to other disabilities. In that case, the court appointed a psychiatric social worker to interpret at the defendant’s plea <mask>, where defendant’s mental illness rendered his thought processes "so convoluted that only one who has both medical and forensic familiarity with them can properly communicate with [him]” (People v Johnny P., supra, at 651).


The defendant’s belated claim of innocence, under the circumstances presented here, is insufficient to grant the motion to vacate his guilty plea. There is no affidavit from the defendant stating that he is innocent of the crime which he admitted committing. Conclusory assertions of innocence do not warrant the granting of a motion to withdraw a guilty plea where the defendant, on the record, admitted the facts which constitute the elements of the crime. (People v McCaskell, 206 AD2d 547 [1994], lv denied 84 NY2d 869 [1994].) During his plea <mask>, the defendant clearly and unequivocally admitted that he committed the crime of attempted criminal possession of a controlled substance in the fourth degree, when he knowingly and unlawfully attempted to possess heroin in Manhattan. (Transcript of defendant’s plea at 10.)


By separate orders to show cause, consolidated for the purposes of this decision, State Farm seeks an order pursuant to CPL 720.35 (2) to unseal the two criminal court files to the extent of obtaining copies of certificates of disposition, and plea <mask> minutes, in the event that the defendants entered guilty pleas. In support of its applications, State Farm cites Royal Globe Ins. Co. v Mottola (89 AD2d 907 [2d Dept 1982]) and Matter of Gannett Suburban Newspapers v Clerk of County Ct. of County of Putnam (230 AD2d 741 [2d Dept 1996]).


Contrary to defendant’s contentions, we find that his guilty plea and appeal waiver were, in all respects, voluntary, knowing and intelligent (see People v Brown, 14 NY3d 113, 116 [2010]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Callahan, 80 NY2d 273, 280 [1992]). While defendant’s challenge to the voluntariness of his guilty plea survives the appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]), the record on appeal fails to reflect that it was preserved by an appropriate post<mask> motion (see People v Watson, 115 AD3d 1016, 1017 [2014]), and nothing in the plea colloquy “casts significant doubt upon . . . defendant’s guilt or otherwise calls into question the voluntariness of the plea” so as to implicate the narrow exception to the preservation requirement (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Wilson, 101 AD3d 1248, 1249 [2012]). In any event, defendant’s claims that he was rushed or pressured into entering a guilty plea are belied by the record, which reflects that County Court thoroughly reviewed the specific terms and consequences of the plea agreement and the trial-related rights he would be forgoing, ascertained defendant’s understanding thereof, permitted breaks for him to confer with counsel, and elicited that he had not been pressured or promised anything, and had been afforded sufficient time to discuss his case and the plea agreement with counsel and others, including his mother, who was present in the courtroom. Moreover, the court separately explained the right to appeal and distinguished it from the other rights that defendant was forgoing as a consequence of his plea, and defendant confirmed that he understood the appeal waiver and executed a written waiver of appeal in open court and orally agreed to waive his appeal rights (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d at 256-257). To the extent that defendant raises arguments regarding what counsel advised him or investigated, they are not supported by the record before us but, rather, concern matters outside the record and, as such, should be raised in a CPL article 440 motion to vacate the judgment of conviction (see People v Haffiz, 19 NY3d 883, 885 [2012]; People v Morey, 110 AD3d 1378, 1379-1380 [2013]).


In his plea <mask>, after a certain amount of prompting by the prosecutor, Calvin Rivers admitted, in summary, that he and defendants Hopkins and Woods had been hanging out together at 542 Morris Avenue on January 7, 2001 when they encountered the complainant; that words were exchanged between them; that defendant Woods then punched the complainant which resulted in a scuffle between Woods, Hopkins and the complainant; whereupon he, Rivers, displayed a knife, and *455with Hopkins still present, robbed the complainant of, among other items, his car keys.2


Accordingly, in synthesizing the respective approaches utilized in Campbell (supra) and in Miller or Armer (supra), the court will consider the following, applicable to the Federal and State claims, in determining if the defendant’s guilty plea was tainted by the undisclosure of alleged Brady evidence: (1) Whether in pleading guilty the defendant was represented by competent counsel and whether the plea <mask> procedure complied with Boykin (supra); (2) The nature of the allegedly suppressed Brady evidence viewed in the over-all context of this case; (3) Whether the defendant’s guilty plea had a credible factual basis and whether her factual confession tendered in court was accurate, reliable, and truthful; (4) A comparison *443of the prejudice allegedly suffered by the defendant in this case as opposed to that suffered by defendants in other cases involving postguilty plea Brady contentions; and (5) As to the issue of materiality, whether the defendant would have pleaded guilty had she been aware of the subject evidence. (See, Miller v Angliker, supra; Tate v Wood, supra; People v Armer, supra.) Assuming such cognizance, this last prong focuses on what a defendant and reasonable and competent counsel would have decided with respect to a plea offer. (Miller v Angliker, supra.) This approach should balance society’s interests in preserving accurate, reliable, and truthful guilty pleas and in assuring that such pleas are knowing, voluntary, intelligent and not false condemnations.


However difficult it is for the original sentencing Judge or Justice to be assured of defendant’s understanding of the plea and its consequences without eliciting from defendant a recitation, on the record, of the facts to which defendant admits, it is nearly impossible for the second or third sentencing Judge or Justice, wholly dependent upon the original <mask> transcript, to be constitutionally assured that defendant was actively or effectively represented by counsel, especially in a busy Conference Part with an enormous calendar, as herein, or a future 1986 individual assignment (IA) growing calendar.


CPL 440.10 (2) (c) requires a court to deny a motion to vacate a judgment if all the necessary facts relating to the legal issue appear “on the record” (People v Cooks, 67 NY2d 100; People v Sadness, 300 NY 69). The “on the record” bar applies whether or not the issue (as opposed to facts) has been preserved for appellate review (People v Cooks, supra, 67 NY2d, at 103, n 1; People ex rel. Gibbs v Vincent, 39 NY2d 918, 919; People v Donovon, 107 AD2d 433; see also, People v McKay, 215 AD2d 221). This bar includes claims of involuntariness of the plea based on the minutes of the plea <mask> (People v Angelakos, 70 NY2d 670, 672-673).


"(1) the applicant improperly benefited as a member of an indicted trade association that enforced an organized-crime influenced, illegal customer-<mask> scheme; "(2) the applicant’s principal, Enrico Casagrande, actively participated in the affairs of an indicted trade association as a member on the Board of Directors during the very period that the trade association was engaging in the criminal conduct for which it now faces prosecution, and took no steps to prevent such corrupt activities; "(3) the applicant’s contracts evidence the unequal bargaining power that Local Law 42 was intended to redress by using, as a standard contract feature, an 'evergreen clause’; *547"(4) the applicant’s contracts reflect the unequal bargaining power that Local Law 42 was intended to redress by including a dubious standard liquidated damages clause; "(5) the applicant’s contracts evidence the unequal bargaining power that Local Law 42 was intended to redress by using, as a standard feature, a provision that absolves the applicant. from any and all liability, in violation of a DCA rule; "(6) the applicant’s contracts reflect the unequal bargaining power Local Law 42 was intended to redress by charging the maximum rates permissible under law, and the applicant’s financial records reveal that it uniformly charged the maximum rates to its customers; "(7) the applicant’s contracts contain a provision on prices that is materially false; and "(8) the applicant has failed to meet its burden of demonstrating that 'a waiver would be consistent with the purposes’ of Local Law 42.” B. O’Brien


Similarly unpersuasive is the defendant’s contention that his plea should be vacated as involuntary. The transcript of the plea proceeding unequivocally demonstrates that the defendant knowingly and voluntarily entered his plea of guilty after being apprised of his rights and acknowledging the ramifications thereof (see generally, People v Harris, 61 NY2d 9). Moreover, the County Court properly denied the defendant’s subsequent application to withdraw his plea. The defendant’s application was supported by nothing more than vague, conclusory, and unsubstantiated claims alleging ineffective assistance of counsel and the defendant’s purported affliction with an unspecified physical illness (see generally, People v Suarez, 201 AD2d 810; People v Braun, 167 AD2d 164). Finally, we note that the defendant’s present challenge to the adequacy of his plea <mask> is unpreserved for appellate review (see, People v Williams, 203 AD2d 499) and, in any event, without merit (see, People v Willingham, 194 AD2d 703).


Moreover, the defendant did more than merely possess the still images and video recordings. According to the case summary prepared by the Board, the defendant engaged in numerous conversations with an undercover police detective over the Internet regarding child pornography.14 During those conversations, the defendant told the detective that he was attracted to girls between the ages of 6 and 16. The defendant also asked the detective to meet him so that the two could masturbate together while watching child pornography. Additionally, according to the defendant’s plea <mask>, he disseminated at least one still image depicting a naked child victim, and one video recording showing an adult male having sexual intercourse with a child victim, by sending the image and recording to the detective over the Internet.15 The defendant’s actions, far beyond mere possession of child pornography, demonstrate to this court that the defendant is willing to carry out his depraved fantasies, thereby warranting an upward departure.


(2) During the <mask> proceedings in 1977, the District Attorney made no objection to the proposed sentence of five years’ probation. In fact, the then District Attorney stated on the record that, at the time of the shooting defendant had just cashed his Supplemental Security Insurance check, and had purchased some liquor; and was then attacked by three males (including the victim) who robbed him of his remaining cash, and then they left. The District Attorney also stated for the record that the three robbers returned within a matter of minutes, displayed knives, and attempted to rob defendant of his food stamps, at which time, defendant, in fear of his life and safety, removed a pistol from his pocket and fired one shot. Thereafter, the three robbers fled and disappeared out of sight, and the victim was later found dead some blocks away from the scene of the shooting. These facts were attested to by the District Attorney following his investigation of this matter. The District Attorney also advised the court that the victim was a narcotics addict, and it was quite probable that he had robbed defendant for the purpose of obtaining money to feed his habit.


Mr. Smith’s presentence investigation report, for instance, notes that "[t]he defendant denies his guilt and stated that he pled guilty 'to get case over.’ ”3 Surely the interest of justice will not permit an accused to be sentenced for a crime he now places in doubt. Nor has this doubt yet been clarified, as it must, orally from the mouth of defendant. Counsel’s assurance that Mr. Smith stands by the <mask> he now places in question is insufficient as a matter of law (CPL 220.50 [1]).


‘ ‘ I hereby consent to be investigated and examined and to be tried without a jury, if that should become necessary, in order to determine whether I should be adjudged a youthful offender ’ ’. The petitioner again appeared in court with assigned counsel on January 13, 1969. He was arraigned as a youthful offender and the following <mask> occurred between the court and petitioner:


of the superseding indictment clearly states that Lewis and Young “brandish[ed] firearms, that is, two semi-automatic handguns during and in relation to a crime of violence . . . that is, Armed Bank Robbery.” And, as recounted above, the district judge stated several times during Lewis’s plea <mask> that armed bank robbery was the predicate offense. The same is true for Young’s plea allocution. When the district judge asked how Young pleaded to the § 924(c) count, he informed Young that the predicate “Crime of Violence” was “Armed Bank Robbery.” Young replied that he was “[g]uilty” of this charge.


Counsel for Montenegro, with the consent of his client, agreed to these terms, however, he then requested the *854courtroom be closed during the plea <mask> and the record sealed. He stated that Montenegro would fear for his safety if required to inculpate Serrano during the colloquy while either Serrano and/or his counsel were present in court. The People joined in this application.


The court also cannot agree with the People’s argument that the record demonstrates defendant entered into his plea voluntarily and intelligently. Although he was represented by counsel, he only replied “Yes” to a weak factual <mask> and never verbally admitted a single essential element of the crime. Furthermore, defendant did not have an extensive criminal record in 1971. Though, he has compiled a long list of arrests since, prior to the arrest that led to the 1971 plea defendant was arrested several other times which resulted in an adjudication of a youthful offender in 1968 and a plea of guilty to an A misdemeanor in 1970. This record is not sufficient to conclude defendant, a mere 17 year old, sufficiently understood the impact of his guilty plea.


On October 7, 2008, this court adjudicated the defendant to be a level two (“moderate risk”) sex offender. Previously, he had been convicted on his plea of guilty to one count of course of sexual conduct against a child, second degree, a class D felony under Penal Law § 130.80. In his <mask>, the defendant admitted engaging in a series of incidents of hand-to-vagina contact by him, then age 18, against his cousin, then age 11.


So, I just want to be specific, if the issue was that he did not have a right of <mask>, should we not give him that right to allocution and then make a determination and argument as it pertains to what the sentence should be from the State and Defense, or should we be starting from the beginning of sentencing, which, I’m not certain puts this Court in any different position. But if you feel as though it does, that’s fine, then giving Mr. Wilkins his right of allocution after I hear from both of you and your witnesses.


The substantive issue now confronting the court is whether there are Due Process Clause considerations and/or procedural bais which would prevent the court from arraigning the defendant as a predicate at this time, and resentencing him as a second felony offender. The defendant argues that due process requires that the defendant’s predicate arraignment take place at the time of his plea or original sentence. Arguably, the filing of the predicate statement at that time apprises the defendant of his predicate status and affords him an opportunity to controvert that status at a time when he could timely move to withdraw his plea and vacate his sentence, if he so desired. However, upon closer examination these purported benefits appear to be more illusory than tangible. Specifically, the defendant was promised and received a sentence to probation which is the same sentence he would have received irrespective as to whether he had been sentenced as a first or second felony offender. The defendant now has the very same opportunity to controvert his predicate conviction on constitutional or any other grounds at this time as he would have had had the predicate statement been filed at the time of his plea or original sentence. Thus, the defendant’s rights in this regard are in no way compromised by the late filing. It is only the collateral consequences of a probation revocation, and, specifically, the court refers to the enhanced sentencing provisions which *492second felony offender status entails which the defendant was not apprised of at the time of his plea and original sentence. However, even had the predicate statement been filed at the time of his plea or original sentence, the defendant would not have necessarily been apprised of the specific sentencing parameters which he faced as a second felony offender in the event his probation was revoked. CPL 400.21, which sets forth the procedure for determining whether a defendant is a second felony offender, contains no requirement that the defendant be apprised of the specific sentencing ramifications of his predicate status, either in the predicate statement itself or at the predicate arraignment. Indeed, no New York State court has ever held, and this court refuses to so hold now, that as part of a plea <mask> to a probation sentence, a defendant must necessarily be apprised of the specific sentencing ranges available in the event of a revocation of that probation. Accordingly, the court finds no due process violation in the filing of the predicate statement at this juncture of the proceedings.1 Indeed, this conclusion is, in the court’s view, supported, or more precisely, mandated by the Court of Appeals position in the case of People v Scarbrough (supra).


Based on all of these factors, this court concludes that it can impute income to the applicant in this matter before appointing counsel. The method for reaching an appropriate imputed income requires a hearing, in which the questions regarding the applicant’s income potential can be evaluated. This court acknowledges that both case law and recent directives from state officials in the Hurrell-Harring v State of New York lawsuit suggest that this process—called an inquiry or <mask> by some courts—should have a certain informality, without resort to the usual tools of the adversarial process and with the court making findings based on some representations made by the applicant and facial review of the application by the Public Defender. This approach strikes this court as wrongheaded and contrary to every judicial impulse in the court’s experience. While every pleading in this court must be accompanied by a sworn statement from a litigant, the applicant’s representations, which are the basis for the initial eligibility determination, are not under oath. In addition, this suggested *433minimalist court review process—going forward without resort to the usual adversarial process—suffers from a distinct deficit: the court, without reliance on sworn statements, cross-examination and further proof—the hallmarks of the adversarial process—will be consigned to the role of a “potted plant”15 in these determinations. Despite the repeated refrain from appellate courts that eligibility is a court-determination, the practical consequence of the court’s reliance on any informal screening process would be that any decision rests solely with the Public Defender. The other inevitable consequence, it seems to this court, is that an applicant will have an enormous temptation to disclose less than the truth, the whole truth, and nothing but the truth, in his application if he knows that he will never be challenged on any representation therein. The Public Defender virtually acknowledges that it does not have the resources to verify the applicant’s submission. The court, under the informal review suggested by state officials in the wake of the Hurrell-Harring v State of New York lawsuit, will not be able to challenge the applicant’s version of his limited income. In short, the dynamics of the judicial process end up upside down. An applicant, without any risk, can obtain public benefits—payments of his legal fees in a custody matter—based on less than a true version of his economic life, with impunity. This court, well aware of the seeds of potential pitfalls and inconvenience that an adversarial hearing might entail, still declines to accept a “potted plant” role in this matter and allow a litigant to reap public benefits without a full hearing. Instead, relying on the well-honed and time-tested adversarial system, this court will hold a hearing on whether this applicant qualifies for appointment of counsel, based on imputed income consistent with his economic skills.


In People v Lopez (71 NY2d 662 [1988]), the Court of Appeals reiterated the rule that, in order to preserve a challenge to the adequacy of a plea <mask> for appellate review, a defendant must either move to withdraw his plea prior to sentence, pursuant to CPL 220.60, or move to vacate the judgment in the lower court, pursuant to CPL 440.10. The Court also noted, however, that in “that rare case . . . where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea . . . the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary” (Lopez, 71 NY2d at 666). “Where the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal” (id.). Upon a review of the record herein, we find that the court below did not meet its obligation of further inquiry under Lopez and, thus, reversal of the judgment of conviction is warranted.


Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3]). We reject defendant’s contention that County Court abused its discretion in denying his motion to withdraw his plea without a hearing (see People v Merritt, 115 AD3d 1250, 1250-1251 [2014]; see generally People v Mitchell, 21 NY3d 964, 966 [2013]). Defendant’s belated and unsupported claims of innocence and coercion were insufficient to justify a hearing (see *1498People v Sparcino, 78 AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). We reject defendant’s further contention that his plea was jurisdictionally defective. Defendant pleaded guilty to the crime charged in the indictment (cf. People v Castillo, 8 NY3d 959, 960-961 [2007]) and, by his guilty plea, defendant forfeited any challenge to the alleged amendment of the indictment (see People v Martinez, 52 AD3d 68, 71 [2008], lv denied 11 NY3d 791 [2008]). Defendant’s valid waiver of the right to appeal precludes review of the factual sufficiency of the plea <mask> and forecloses defendant’s challenge to the severity of his sentence (see People v Talley, 112 AD3d 1347, 1347 [2013]; People v Nash, 38 AD3d 684, 684 [2007], lv denied 9 NY3d 848 [2007]). While defendant’s contention that his plea was not voluntary survives the waiver of the right to appeal and was preserved by his motion to withdraw his plea, we conclude that the contention is without merit inasmuch as it is belied by the record (see Merritt, 115 AD3d at 1251).


As an initial matter, <mask> is not testimony. Defendant was not sworn in, and even if she had been sworn in, it would not have been the trial court’s role to conduct what was effectively a cross-examination. Furthermore, the trial court actively prevented defendant from expressing remorse and responsibility after the crime by focusing on the crime itself—and its impermissible interpretation of that crime. The trial court’s commentary indicated that it wished to provide its own testimony, seemingly in the pursuit of a sentencing decision it had already decided upon before allocution and contrary to the law as explained by both attorneys.


We affirm. Even if defendant's claim of ineffective assistance of counsel and his challenge to the denial by County Court (Carter, J.) of his request for new counsel affect the voluntariness of his plea and, therefore, survive his unchallenged appeal waiver, they are unpreserved for our review as the record does not reflect that he made an appropriate post<mask> motion (see People v Avera, 192 AD3d 1382, 1382-1383 [2021], lv denied 37 NY3d 953 [2021]; People v Rolfe, 83 AD3d 1219, 1220 [2011], lv denied 17 NY3d 809 [2011]). In any event, were they properly before us, we would find that they are without merit (see People v Smith, 18 NY3d 588, 593 [2012]; People v Toledo, 144 AD3d 1332, 1334 [2016], lv denied 29 NY3d 1001 [2017]). Finally, defendant's remaining contention, that his sentence is harsh and excessive, is precluded by his unchallenged appeal waiver (see People v Brown, 197 AD3d 1440, 1440 [2021]; People v Carter, 190 AD3d 1161, 1161 [2021]).


On March 13, 2005 defendant was not sentenced because the court noted that the presentencing report was inconsistent with the defendant’s plea <mask> and appeared to be in violation of the court’s warnings to the defendant at the time of the plea with respect to cooperating with the Department of Probation. Specifically, on page four of the report under the heading “Summary of Offender’s Statement” the probation officer interviewing the defendant indicated that “defendant refused to make a statement regarding the instant offense.” The court later learned that in completing this portion of the report the officer relied upon a case write-up from the District Attorney’s office rather than defendant’s own contemporaneous statement. The write-up paraphrased an earlier videotaped statement given by defendant in which he admitted the conduct allocuted to. Accordingly, a hearing pursuant to People v Hicks (98 NY2d 185 [2002]) was ordered to determine whether and to what extent defendant had in fact violated the court’s admonitions to cooperate fully with the Probation Department.


William D. Friedmann, J. Defendant pleaded guilty to the crime of criminal possession of a weapon in the third degree (Penal Law, § 265.02 [a class D violent felony]). During the <mask> as part of the plea, defendant admitted to a prior felony conviction of attempted robbery in the second degree (Penal Law, § 160.10 [a class D violent felony]).


Executive Law § 259-i (3) (f) (x) and 9 NYCRR 8005.19 (e) and 8005.20 (b) require that a violation of parole conditions must be “in an important respect” to justify revocation. (Matter of Rago v Alexander, 60 AD3d at 1123-1124; Matter of Hicks v New York State Div. of Parole, 255 AD2d at 842; People ex rel. Bayham v Meloni, 182 Misc 2d at 833; see Executive Law § 259-i [3] [c] [iv], [vi], [viii]; 9 NYCRR 8005.7 [3]-[5]; People ex rel. Watson v Commissioner of N.Y. City Dept. of Correction, 149 AD2d at 124-125.) Petitioner acknowledged his guilt of the curfew violation, but the ALJ conducted no <mask> regarding the elements of the violation and elicited no acknowledgment from petitioner that he had violated his curfew in an important respect. (See People v Aleman, 43 AD3d 756, 757 [1st Dept 2007].) Only his attorney stated that the violation was in an important respect. (See People v Colon, 42 AD3d 411, 412 [1st Dept 2007].)


We reverse as we agree with respondent that the plea <mask> was insufficient. Although Family Court partially complied with Family Court Act § 321.3, and respondent acknowledged that his Law Guardian advised him of his rights, it was the court’s obligation to advise respondent of the right to a fact-finding hearing and to ascertain, through an allocution of respondent and his mother, who was present at the proceedings, that he was voluntarily waiving such right and was aware of the possible dispositional orders (see, Matter of Edgar Q., 185 AD2d 432; Matter of Brian 00., 158 AD2d 816; Matter of Paul H, 154 AD2d 943; see also, Family Ct Act § 321.3 [1] [b], [c]). Therefore, since Family Court did not fulfill this obligation, the dispositional order should be reversed and the matter remitted to Family Court for further proceedings (see, Matter of Herbert TT, 192 AD2d 916).


The <mask> was, at best, threadbare and did not contain traditional questions concerning the privilege against compulsory self-incrimination, the right to confront accusers, and whether defendant waived them. After he was asked how he pleaded and he said "guilty”, defendant was advised of his right to a jury trial and asked whether he was aware that he was pleading guilty to a crime, a felony, and that he could be put in jail. The defendant, through his wife, gave affirmative answers to the court’s questions about the crime, noting that the theft was of a chain, not money, as the court had stated.


In People v Pruitt (83 AD2d 872, 873) the court said: “During the <mask> prior to the plea of guilty upon which the predicate felony conviction was rendered, defendant was not told, nor did the People show that he knew, that by pleading guilty he would waive (1) his rights to confront witnesses and have a trial by jury, and (2) his privilege against self incrimination. Accordingly, that conviction cannot be deemed a predicate felony for purposes of sentencing pursuant to section 70.06 of the Penal Law (see CPL 400.21, subd 7, pars [a], [b]; People v De Berry, 73 AD2d 652).”


Fifthly, the sophomoric nonsense of spending a half hour on a detailed <mask> of sworn guilt by the defendant, discussing the law and the facts at length, and then defendant reversing himself, saying the opposite, denying his guilt to probation later on. Some defendants are advised to tell Probation that he was not guilty so that later the defendant could argue this nonguilt with the Parole Board. We are given to understand that the Parole Board does not always nor do they make a practice of reading the transcript of the plea or the sentence. This scenario has happened to me on dozens of occasions. The defendant having made that point to Probation, reduced to an official report, the defendant will argue and be able to swear to the Parole Board that they always claim that they were not guilty. Nevertheless none of this seems to stop them from being able to reswear to their guilt before me at sentencing, a second time, and then demand that the original low plea bargain sentence be given to them. To make matters more illogical, the Appellate Division has ruled that a court cannot enhance a defendant’s jail sentence because of these types of lies to Probation. The probation report stands as is; a very officious looking document to be read by the Parole Board. Clever, and we have not defeated this ploy. Many Judges suspect this advice emanates from some of the "law library clerks”.


Therefore, the failure to advise defendant that by pleading guilty he was waiving his right to a jury trial along with his other Boykin rights, the weak factual <mask>, make it impossible to conclude defendant’s 1971 plea was entered voluntarily. As a result, the court agrees with defendant that this conviction cannot be used as a predicate felony for the purposes of sentencing (see CPL 400.21, subd 7, par [b]).


David D. Egan, J. On April 19, 2001 a jury convicted defendant, John F. Owens, of two counts of first degree murder pursuant to Penal Law § 125.27 (1) (a) (vii) relating to the death of two separate victims, and two counts of first degree rape pursuant to Penal Law § 130.35 relating to a third victim. Just before the presentation of evidence in the sentencing phase of trial, defendant, by notice of motion filed on April 23, 2001, sought permission *393to give an unsworn <mask> following summations. The People opposed defendant’s motion.


The prosecution’s use of Ortiz’s <mask> against him in a subsequent murder trial is a direct consequence of his guilty plea, and a consequence of which Ortiz should have been alerted. Because Ortiz was not informed of its potential use against him, this court cannot conclude that Ortiz had full knowledge of the direct consequences of his plea. Rather, as the defendant urges, this court is persuaded that at least a reasonable probability exists that had Ortiz been advised by the court, the District Attorney, or his own attorney that his in-court admission could be used in evidence against him to later prove a more serious charge of murder, he probably would not have relinquished his right to remain silent, and entered the guilty plea in the assault case.


Respondent’s admissions in the plea <mask>, when read in conjunction with the counts of the information, are sufficient to satisfy the elements of felonious larceny under New York law (see, Penal Law § 155.42), and thus constitute a predicate for automatic disbarment under Judiciary Law § 90 (4) (b) (Matter of Meyer, 200 AD2d 17; Matter of Karsch, 197 AD2d 262; Matter of Powsner, 195 AD2d 21). Under the circumstances, a "serious crime” hearing is unnecessary (Matter of Catalfo, 181 AD2d 213).


In Vasquez, another court of coordinate jurisdiction, in a most scholarly review of the issue, concluded that the retroactivity of Crawford must depend on the answer to the following question regarding its role in promoting the accuracy of the trial process, namely: whether a judicial determination conducted pursuant to Roberts so seriously diminished accuracy that it constituted an impermissibly large risk that an innocent person would be convicted. (Vasquez, supra, 7 Misc 3d at 785.) Examining its own careful and searching inquiry which had been conducted at the trial pursuant to Roberts prior to permitting introduction of a codefendant’s plea <mask> as a declaration against penal interest (id. at 766-768), the Vasquez court concluded that the likelihood of an accurate conviction in that case had not been seriously diminished by the failure to employ Crawford’s requirement of cross-examination. Finding the decisions according retroactivity not to have engaged in such an analysis, the court there concluded that Crawford was not to be applied retroactively to cases already final on direct review. (Id. at 789-790 [“The Roberts rule required judicial engagement in a careful analysis to safeguard the accuracy of the verdict, a procedural apparatus not considered in the Cruz or Eastman rulings. Nor was the impact of that procedure on the likelihood of an accurate conviction discussed in Watson (II) or Dobbin, in determining the issue of retroactivity”].)


Upon that basis, I disagree with the suggestion by Justice Goldberg in People v Ryan (supra, at 969-970) that defendant could be afforded the option to withdraw his plea if he is to be resentenced as a predicate felon. To the contrary, where, as here, defendant is advised during the plea <mask> that he will be sentenced as a predicate felon if it is subsequently learned that he had a prior felony conviction, and he agrees to this, there is nothing to prevent the promised sentence from being imposed. Nor is there any basis to afford him the option to withdraw the plea. This should apply, whether the fraud is uncovered prior to sentence or some time thereafter. In either case, the sentence resulted from a deliberate fraud and deception, contrived by defendant, which should not be countenanced by the court.


Contrary to the position of the defendants, the court concludes that Mr. Harchack’s plea <mask> is admissible, at least for the purposes of this summary judgment motion. In People v Thomas (68 NY2d 194 [1986], supra), the Court of Appeals understandably articulated the higher standard of “exacting scrutiny” which must be applied before the plea allocution *572of a codefendant may be introduced against a defendant in a criminal case. Where, by contrast, a criminal defendant seeks to offer a codefendant’s statement because it is exculpatory with respect to the defendant on trial, the standard is more lenient. (People v Settles, 46 NY2d 154 [1978]; People v Smith, 195 AD2d 112 [1st Dept 1994].) In such circumstances, to qualify for admission as a declaration against penal interest four elements must be present: (1) the declarant must be unavailable as a witness at trial, (2) when the statement was made the declarant must be aware that it was adverse to his penal interest, (3) the declarant must have competent knowledge of the facts underlying the statement, and (4) supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability. (People v Settles, 46 NY2d, at 167.)


Moreover, at the time of the <mask>, respondent not only lacked knowledge of her defenses but was apparently also unaware even of the possible usefulness of legal representa*307tian. The record is devoid of any evidence that respondent made an informed or knowing choice to proceed without counsel. Quite the opposite appears from the record of the allocution and the factual showing made in respondent’s motion papers as to the circumstances under which respondent attempted to defend this proceeding pro se. Respondent is indigent and initially settled this proceeding based on the expectation that the Department of Social Services (DSS) would pay her rent arrears. She was unsuccessful in obtaining assistance, and failed to pay the arrears due under the first stipulation. She then defaulted on petitioner’s motion for judgment under the stipulation, apparently on the advice of a public assistance caseworker that DSS would not pay and that she had no choice but to move. After receiving a marshal’s 72-hour notice of eviction, she obtained an order to show cause to stay the eviction, and proceeded to enter into the final stipulation, based on another effort to obtain the assistance from DSS which had thus far eluded her. It was not until the allocution of that stipulation, when the court pointed out that she might qualify for special benefits to stop the eviction under the Jiggetts case (Jiggetts v Grinker, 75 NY2d 411) and that she needed to see a lawyer to find out whether this was so, that she finally appreciated the need for legal representation.


In his second point on appeal, Thompson argues that the trial court failed to grant him <mask> before imposing sentence. Thompson admits that this claim of error was not first raised with the trial court, and is eligible for no more than plain error review on appeal. State v. Baumruk , 280 S.W.3d 600, 607 (Mo. banc 2009) ("Issues that were not preserved may be reviewed for plain error only...."). "Review for plain error involves a two-step process." Id. First, the appellate court must determine "whether the claim of error 'facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.' " Id. (quoting State v. Brown , 902 S.W.2d 278, 284 (Mo. banc 1995) ). Second, if the appellate court finds plain error, then the court must determine "whether the claimed error resulted in manifest injustice or a miscarriage of justice." Id. at 607-08 (quoting State v. Scurlock , 998 S.W.2d 578, 586 (Mo. App. W.D. 1999) ).


Defendant, who is the movant, also provides no proof of when the crime occurred. Certainly the court cannot say with any degree of certainty that the crime occurred more than seven years prior to the institution of this action. Accordingly, final *201resolution of this action must await further proof being submitted to the court as to the date the crime occurred. This might be either in the form of an affidavit of a person with actual knowledge of the dates of the crime, a transcript of the plea <mask> in Supreme Court, or a certified copy of the Supreme Court superior court information to which defendant pleaded guilty. Final resolution of the motion is therefore held in abeyance pending a determination of the date(s) of the crime(s). It is, therefore, ordered that the motion to dismiss based on the Statute of Limitations is held in abeyance pending the submission of further papers and/or documents consistent with this decision; and it is further ordered that the motion is restored to the Special Term, Part I calendar for February 7, 2000 at 9:30 a.m. for the submission of said papers and/or documents.


This court will also not conclude that counsel was ineffective for failing to ask for an Alford plea under the circumstances *662here. This court does not accept Alford pleas from defendants who profess their innocence. And, as has been the practice in this county for many years, the district attorney does not consent to such pleas, which consent would have been necessary in this case in order for the court to have accepted it. In this case, it was patently obvious on June 11, 1998, when the defendant asserted his innocence and lack of the requisite knowledge to be found guilty of the charge in the SCI (or, later, in the indictment), that the prosecutor was not going to consent to the disposition without an admission of guilt. This is clear from the record of the proceedings on June 11, 1998. And while it is true that on review of whether a guilty plea has been knowingly, voluntarily and intelligently entered, the fact that a full <mask> had not been rendered on a negotiated disposition will not necessarily lead to the conclusion that the guilty plea was not validly entered, this does not lead to the conclusion that a court or prosecutor is required to forego an allocution upon an attempt to plead guilty to a reduced charge. It should also be noted that in this case, the proposed charge in the SCI was not a “reduced” or lesser offense. Rather, it was a separate and distinct crime under a different theory of criminal culpability of a lesser grade of offense than those the defendant was ultimately convicted of.


On this appeal, defendant contends that his plea was not knowingly and voluntarily made because his attorney neglected to advise him, as an alien, of the potential for deportation as the result of his guilty plea. We disagree. The fact that defendant was subject to deportation pursuant to the Immigration and Nationality Act (see, 8 USC § 1251 et seg.) is a collateral consequence of his plea about which counsel was under no obligation to advise (see, People v Boodhoo, 191 AD2d 448; People v Avila, 177 AD2d 426, lv denied 79 NY2d 918). Moreover, nothing in the record indicates that counsel was even aware of defendant’s alien status at the time he entered the plea. A review of the plea <mask> reveals that, in all other respects, defendant’s plea was knowingly and voluntarily made and the judgment should therefore be affirmed.


Herein, defendant pleaded guilty to Penal Law § 120.05 (7). Conviction of assault in the second degree, that is, an assault committed inside a prison facility, presumptively requires the imposition of a consecutive sentence. Because of the range of dispositions that may otherwise have occurred or been available to Mr. Smith under the within indictment, only divination would have allowed a court presiding over his earlier plea <mask> to be able to fulfill a promise based on the assumption that defendant, in futuro, could avoid being treated more harshly. Notwithstanding, the 18-month removed outcome of Mr. Smith’s Bronx County case, both in terms of the plea entered to a specific crime mandating the imposition of a consecutive sentence, as well as a fully allocuted agreement to the condition for its imposition, that is, "consecutive to the sentence you will receive in New York County” is not simply controlling, but now makes fulfillment of the New York County promise impossible to honor; indeed, in light of the foregoing, legally improper (cf., People v Urquidez, 84 AD2d 795 [2d Dept 1981]; People v Rogers, 81 AD2d 564 [1st Dept 1981]).


Defendant was adjudicated a juvenile delinquent in 1982 and placed with the New York State Division for Youth. During part of that placement, defendant resided at Camp Nueva Vista, situated in Fulton County. According to the colloquy between defendant and the court at the time of defendant’s guilty plea, defendant understood that Camp Nueva Vista was a “detention facility.” He described the facility as being comprised of a series of cottages staffed by “supervisors” who were the functional equivalent of guards. According to defendant’s plea <mask>, he and two other facility residents agreed to “go AWOL.” Defendant stated, “we hid under the sofas and when everybody was in the back we jumped out the window.” Defendant thereafter hid in a wooded area until he encountered one of his cohorts driving an automobile, which defendant correctly assumed to have been stolen. Defendant rode with the other resident to Kingston, New York. He was apprehended sometime thereafter, hitch-hiking his way from Kingston to New York City.


On March 2, 2004, the defendant pleaded guilty to the class D felony of grand larceny in the third degree. In his plea <mask>, the defendant, employed as an accountant, although not a certified public accountant, for the complainant’s business, admitted that he had written business checks to himself and had deposited the checks in his personal account without the permission or authority of the complainant. On the day of the plea, with the consent of the District Attorney and the complainant, the defendant was promised a probation sentence with the specific presentence condition that he make full restitution.


Similarly in the case at hand, because Martinez died nearly three years after Ortiz pleaded guilty to assault, the prosecution cannot be said to have "bargained” for the use of his plea <mask> as evidence in its case-in-chief in a subsequent murder proceeding. Consequently, use of the allocution against Ortiz at the murder trial would be similarly unfair. (See, People v Moore, supra, at 1030.)


While the failure of the court to afford a defendant his right of <mask> (CPL 380.50) ordinarily requires a reversal of the sentence and a remand for resentence (People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People v. Sullivan, 3 N Y 2d 196) no useful purpose would be served thereby in this case, since defendant has served the sentence imposed (People v. Gifford, 2 A D 2d 642) and the error applies solely to the sentence. (People v. Ruffin, N. Y. L. J., June 5, 1973, p. 2, col. 1.) In such case any question as to the validity of the sentence has been rendered moot (People v. Nogan, 25 A D 2d 528).


In People v Tratch (104 AD2d, supra, at 504), the Appellate Division held that a <mask> of a person by a police officer to protect himself was proper as being based on reasonable suspicion and the precautionary measure of “frisking” the shopping bag carried by the defendant was also warranted as it could have contained a gun. The majority held that the lifting of a shopping bag having weight, the looking into the bag and the removal and opening of a vinyl carrying case “ ‘designed to carry a revolver’ ” was reasonable (supra, at 503). The dissent disagreed only by characterizing the officer’s actions of “opening and exploration of a closed container,” the shopping bag as well as the vinyl bag contained therein, as a full-blown search designed to uncover evidence and requiring probable cause (supra, at 506 [Boyer, J., dissenting]).


People v. Rosemond (26 N Y 2d 101 [1970)), in upholding section 180-a of the Code of Criminal Procedure dealing with “ <mask> ” said (pp. 103, 104), “ a statute, such as this one, addressed to a particular situation and designed to give legal justification for specially prescribed procedures ought not to be read to narrow down the normal duty of police to find out by suitable inquiry what is going forward in the public streets.”


This case was previously heard by this Court in 1993 (People v Vasquez, 200 AD2d 344, Iv denied 84 NY2d 873). The appeal was held in abeyance and the matter remanded for a Dunaway (Dunaway v New York, 442 US 200) hearing based upon People v Mendoza (82 NY2d 415 [Nov. 22, 1993, Kaye, Ch. J.]) and upon defendant’s assertion, contained in his omnibus motion, that "it is not even claimed that the defendant was engaged in any illegal activity at the time of his arrest.” The Dunaway hearing was held in October 1994, and Supreme Court issued a written opinion and order dated January 5, 1995. The decision contains detailed findings of fact and *119concludes that the police had both probable cause to arrest defendant for murder and reasonable suspicion to <mask> him for possession of a weapon.


3. Where a police officer has a reasonable suspicion that a particular person has committed, is committing or is about to commit a crime, he may forcibly stop and detain that person. With reasonable suspicion, the officer may also <mask> a person when the officer reasonably suspects that he is in danger of physical injury by a person he reasonably believes is armed.


The opinion of the majority rests upon the supposition that exigent circumstances derive from the gravity of the crime of murder and the public interest involved in the detection and apprehension of the perpetrator, coupled with a projection of the legality of the initial entry by a continuing police surveillance of the crime scene, and reliance upon the rule of Terry v. Ohio (392 U. S. 1 [1968]), where, in the interest of crime prevention and the protection of law enforcement personnel, a “ <mask> ” was permitted without probable cause, as a legitimate police investigative technique.


In People v Mosley (68 NY2d 881 [1986]), the court held that a defendant has standing to contest the <mask> of a person with whom he was walking down the street since the *668prosecution relied upon the discovery of a gun on the other person as the basis for arresting the defendant charging him with constructive possession of the weapon concealed on his companion.


“a. All enforcement encounters where there is at least reasonable suspicion the person(s) has committed, is committing or may be involved in criminal activity consistent with P.G. 212-11 ‘<mask>.’ This includes, but is not limited to, self-initiated stops and radio runs “b. All enforcement encounters where there is reason to believe that the individual is committing a violation/petit offense for which a summons may be issued (e.g., TAB summons, ECB summons, Criminal Court summons, etc.) “c. All vehicle stops “d. Taking or attempting to take an individual into custody (e.g., arrests, protective custody of an emotionally disturbed person, etc.) “e. All incidents involving the use of force *661“f. Any public interaction regardless of context, that escalates and becomes adversarial, so long as it is not one of the prohibited situations in step ‘8’ below. “g. All interior vertical patrols of non-Housing Authority buildings and Housing Authority buildings conducted pursuant to P.G. 212-59, ‘Vertical Patrol’ and P.G. 212-60, ‘Interior Vertical Patrol of Housing Authority Buildings.’ The BWC must be activated upon entering the building and terminating the interior vertical patrol along with any associated police action, if any.” (Id.) Step “7” of the order provided that participating officers could “[c]onsider activating the BWC during any activities where, in the uniformed member’s judgment, it would be beneficial to the record, so long as it [was] not one of the prohibited situations in step ‘8’ below.” (Id.) Step “8” of the order delineated the circumstances in which an officer was directed not to activate the BWC: