| People v Doane |
| 2016 NY Slip Op 08122 [145 AD3d 1088] |
| December 1, 2016 |
| Appellate Division, Third Department |
[*1](December 1, 2016)
| The People of the State of New York,Respondent, v Lee W. Doane, Appellant. |
Patrick A. Perfetti, Cortland, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Terry Northrup of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered November 2, 2009, convicting defendant upon his plea of guiltyof the crime of murder in the second degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to a single countof murder in the second degree. Consistent with the terms of that plea agreement, CountyCourt sentenced defendant to 23 years to life in prison. Defendant appeals. Weaffirm.
Defendant contends that his guilty plea was not knowing and voluntary becauseCounty Court did not make an adequate inquiry into a possible intoxication defense. Asan initial matter, in light of defendant's statements made during the plea colloquyconcerning his alcohol consumption at the time of the crime, defendant's failure to makean appropriate postallocution motion is not fatal to his claim, which remains reviewable(see People v McNulty, 70AD3d 1127, 1128 [2010]; People v Carter, 62 AD3d 1154, 1154 [2009], lvdenied 13 NY3d 795 [2009]; People v Maldonado, 254 AD2d 574, 574[1998]). The specific intent to cause the death of another person is an element of thecrime of murder in the second degree (see Penal Law § 125.25 [1]),and such element may be negated by the potential defense of intoxication (see Peoplev Thomson, 279 AD2d 644, 644-645 [2001]). As such, defendant's awareness of theright to present such evidence is generally essential to a knowing and voluntary guiltyplea (see People vDeCenzo, 132 AD3d 1160, 1161 [2015], lv denied 27 NY3d 996[2016]; People v Thomson, 279 AD2d at 645).
[*2] During the allocution, after defendant indicated that hehad consumed alcohol immediately prior to committing the crime, County Court wasobligated to inquire at that time whether defendant was aware of a potential intoxicationdefense and ensure that defendant was knowingly and voluntarily waiving that defense(see People v Thomson, 279 AD2d at 645; People v Osgood, 254 AD2d571, 572 [1998]; People v Braman, 136 AD2d 382, 384 [1988], lv denied72 NY2d 911 [1988]). Under the circumstances of this case, however, we conclude thatdefendant's plea was nonetheless made knowingly and voluntarily because of defendant'sadmissions during the allocution that obviated the need for any further inquiry by CountyCourt. In this regard, defendant's recollection of the incident in question was notequivocal. Rather, defendant provided detailed and vivid facts of the crime, and hisstatements did not reveal that his mental capacity was somehow diminished when hestabbed the victim (see People vHampton, 142 AD3d 1305, 1306 [2016]; People v Morgan, 84 AD3d 1594, 1594 [2011], lvdenied 17 NY3d 819 [2011]; People v Beach, 306 AD2d 753, 754 [2003]).Additionally, we are satisfied that County Court adequately discussed with defendant theaffirmative defense of extreme emotional disturbance and ensured that defendant haddiscussed that defense with his attorney and knowingly waived the right to pursue it(see People v Hampton, 142 AD3d at 1306).
Turning to defendant's ineffective assistance of counsel claim, he contends that hiscounsel failed to object to County Court's improper acquisition and reference atsentencing to presentence reports that were prepared for sentencing in defendant's priorunrelated criminal actions (see CPL 390.50 [1]). Even if we agreed withdefendant that disclosure in this collateral matter of the prior presentence reports wasimproper absent "authorization of the court[s]" that previously sentenced him (CPL390.50 [1]; see People vFishel, 128 AD3d 15, 17-18 [2015]; Matter of Blanche v People, 193AD2d 991, 991-992 [1993]), he has neither demonstrated how he was prejudiced oraggrieved by the information contained in those reports (see CPL 390.30 [1],[2]), nor shown how such information affected his sentence where County Courtsentenced him in accord with the negotiated plea agreement and the agreed-uponsentence of 23 years to life in prison (see People v Schreiner, 140 AD3d 1399, 1400 [2016]).Inasmuch as the balance of defendant's claims concern what counsel advised him or othermatters that are outside of the record on appeal, those claims are more appropriatelyaddressed in a motion pursuant to CPL article 440 where a record could be made (see People v Clark, 135 AD3d1239, 1240 [2016], lv denied 27 NY3d 995 [2016]; People v Pickett, 128 AD3d1275, 1276 [2015], lv denied 26 NY3d 930 [2015]). We have considereddefendant's remaining contentions and find them to be without merit.
McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.