PEOPLE v. COLLINS (2007)

Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25[4] ).   Defendant contends that, although County Court advised him that he was precluded from raising the defense of intoxication pursuant to the existing law at the time of the guilty plea (see generally People v. Register, 60 N.Y.2d 270, 275-276, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544;  People v. Hilligas, 291 A.D.2d 926, 738 N.Y.S.2d 274, lv. denied 98 N.Y.2d 651, 745 N.Y.S.2d 510, 772 N.E.2d 613), the law has since changed (see generally People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163;  People v. Coon, 34 A.D.3d 869, 870, 823 N.Y.S.2d 566).   Defendant thus contends that he will be deprived of due process if we do not apply the current law in reviewing the factual sufficiency of his plea allocution, 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 law upon his direct appeal from the judgment of conviction (see generally Policano v. Herbert, 7 N.Y.3d 588, 603-604, 825 N.Y.S.2d 678, 859 N.E.2d 484).   Nevertheless, even assuming, arguendo, that we agree with the Third Department that intoxication is a defense to depraved indifference murder (see Coon, 34 A.D.3d at 870, 823 N.Y.S.2d 566), we conclude that reversal is not required.   The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal (see People v. Donahue, 21 A.D.3d 1359, 801 N.Y.S.2d 218, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797;  People v. Spivey, 9 A.D.3d 886, 779 N.Y.S.2d 373, lv. denied 3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682;  People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564).   In any event, defendant failed to preserve that challenge for our review by moving to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Emm, 23 A.D.3d 983, 984, 804 N.Y.S.2d 880, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797;  People v. Perry, 21 A.D.3d 1352, 802 N.Y.S.2d 816, lv. denied 5 N.Y.3d 884, 808 N.Y.S.2d 587, 842 N.E.2d 485;  see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5), and nothing in the plea allocution alerted the court that defendant had a viable defense of intoxication, thereby placing the court under a duty, prior to accepting the plea, of inquiring into whether defendant was fully aware of and voluntarily waiving any such defense (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Defendant likewise failed to preserve for our review his contention that his plea was not voluntarily, knowingly, and intelligently entered (see DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140) and, in any event, that contention lacks merit.

We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: