People v. Curtis (34 A.D.2d 1057, 1970)

Sweeney, J.

Appeal from a judgment of the County Court of St. Lawrence County, rendered November 14, 1969, convicting defendant of the crime of possession of a loaded weapon. On October 24, 1969, defendant pleaded guilty to the crime of possession of a loaded weapon in violation of subdivision 2 of section 265.05 of the Penal Law. The questions raised on this appeal are whether defendant Imew he was pleading guilty to a Class D felony and whether the court’s acceptance of that plea was unjust. Initially, the record indicates that there was confusion on the part of the defendant as to whether the charge was a misdemeanor or a felony. The trial court, sensing this, refused to take a plea, and on two occasions recessed the proceedings and instructed the defendant’s attorney to go over the matter with the defendant again. The record demonstrates that the court zealously protected the defendant’s rights. Prior to the second recess, he stated, “I am not going to let him plead guilty to anything he doesn’t understand.” He repeatedly advised the defendant that he was pleading guilty to a felony. After the second recess, the court specifically asked defendant if he understood that he was pleading guilty to a felony, and the defendant stated that he did. The matter of pleading a defendant is left to the discretion of the court. (People v. Nixon, 21 N Y 2d 338, 353.) On this record there is no merit to defendant’s contention that he did not realize he was pleading guilty to a felony. Neither is there any merit to the other issue raised by the defendant, since he pleaded guilty to the indictment as charged. Judgment affirmed. Reynolds, J. P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Sweeney, J.