| People v Collins |
| 2007 NY Slip Op 09289 [45 AD3d 1472] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Y.Collins, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered April7, 2005. The judgment convicted defendant, upon his plea of guilty, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofmurder in the second degree (Penal Law § 125.25 [4]). Defendant contends that, althoughCounty Court advised him that he was precluded from raising the defense of intoxicationpursuant to the existing law at the time of the guilty plea (see generally People v Register,60 NY2d 270, 275-276 [1983], cert denied 466 US 953 [1984]; People v Hilligas,291 AD2d 926 [2002], lv denied 98 NY2d 651 [2002]), the law has since changed (see generally People v Feingold, 7NY3d 288, 294 [2006]; People vCoon, 34 AD3d 869, 870 [2006]). Defendant thus contends that he will be deprived ofdue process if we do not apply the current law in reviewing the factual sufficiency of his pleaallocution, in view of his presently viable defense of intoxication. We reject that contention.Defendant is correct that he is entitled to the application of current principles of substantive lawupon his direct appeal from the judgment of conviction (see generally Policano v Herbert, 7 NY3d 588, 603-604 [2006]).Nevertheless, even assuming, arguendo, that we agree with the Third Department thatintoxication is a defense to depraved indifference murder (see Coon, 34 AD3d at 870),we conclude that reversal is not required. The challenge by defendant to the factual sufficiency ofthe plea allocution does not survive his valid waiver of the right to appeal (see People v Donahue, 21 AD3d1359 [2005], lv denied 6 NY3d 775 [2006]; People v Spivey, 9 AD3d 886 [2004], lv denied 3 NY3d712 [2004]; People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878[1998]). In any event, defendant failed to preserve that challenge for our review by moving towithdraw his guilty plea or to vacate the judgment of conviction (see People v Emm, 23 AD3d 983,984 [2005], lv denied 6 NY3d 775 [2006]; People v Perry, 21 AD3d 1352 [2005], lv denied 5 NY3d884 [2005]; see generally People v Lopez, 71 NY2d 662, 665 [1988]), and nothing in theplea allocution alerted the court that defendant had a viable defense of intoxication, therebyplacing the court under a duty, prior to accepting the plea, of inquiring into whether defendantwas fully aware of and voluntarily waiving any such defense (see Lopez, 71 NY2d at666). Defendant likewise failed to preserve for our review his contention that his plea was notvoluntarily, knowingly, and intelligently entered (see DeJesus, 248 AD2d 1023 [1998])and, in any event, that contention lacks merit.
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Gorski, Centra, Fahey and Green, JJ.