
    The People of the State of New York, Respondent, v Boysie March, Appellant.
    [801 NYS2d 209]
   Appeal from a judgment of the Supreme Court, Oneida County (Michael E. Daley, J.), rendered August 27, 2003. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]). Although the contention of defendant that he was denied effective assistance of counsel as a result of his first attorney’s failure to notify the People that he wished to testify before the grand jury depends on facts outside the record and therefore must be raised by way of a motion pursuant to CPL article 440 (see People v Bryant, 1 AD3d 966 [2003]; People v Nicholson, 269 AD2d 868, 869 [2000], lv denied 95 NY2d 907 [2000]; People v Parker, 220 AD2d 815, 817 [1995], lv denied 87 NY2d 1023 [1996]), we nevertheless conclude that defendant’s contention would not require reversal in any event. Even assuming, arguendo, that defendant’s contention survives the guilty plea (see Bryant, 1 AD3d at 966), we conclude that “defense counsel’s failure to notify the People that defendant wished to testify before the grand jury does not, by itself, amount to ineffective assistance of counsel” (People v Dennis, 295 AD2d 755, 756 [2002], lv denied 99 NY2d 534 [2002]; see People v Wiggins, 89 NY2d 872, 873 [1996]). We further reject defendant’s contention concerning the alleged factual insufficiency of the plea allocution. “[W]here, as here, defendant pleads guilty to a crime less than that charged in the indictment, a factual colloquy is not required” (People v Harris, 233 AD2d 959, 959 [1996], lv denied 89 NY2d 1094 [1997]; see People v Zimmerman, 219 AD2d 848 [1995], lv denied 88 NY2d 856 [1996]; see also People v Clairborne, 29 NY2d 950, 951 [1972]). Present—Pigott, Jr., P.J., Green, Gorski, Smith and Lawton, JJ.  