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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Michael CHIOVARO, appellant.

Decided: May 24, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and HOWARD MILLER, JJ. M. Sue Wycoff, New York, N.Y. (Carmine J. Annunziato of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Rhea A. Grob of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered July 1, 1997, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his statements during the plea allocution raised the possibility of a justification defense which cast significant doubt upon his guilt and rendered his plea involuntary.   However, the defendant's recitations, read as a whole and in context of the case (see, People v. McGowen, 42 N.Y.2d 905, 397 N.Y.S.2d 993, 366 N.E.2d 1347), do not raise a viable justification defense to the crime to which he pleaded guilty, i.e., murder in the second degree based on a depraved indifference to human life (see, People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;  People v. Lopez, 71 N.Y.2d 662, 667, 529 N.Y.S.2d 465, 525 N.E.2d 5).  The allocution minutes demonstrate that the defendant's plea was entered knowingly, voluntarily, and intelligently, and that he understood the crime to which he was pleading guilty.

The defendant's purported waiver of his right to appeal his sentence was not valid (see, People v. Rowe, 236 A.D.2d 637, 654 N.Y.S.2d 787;  People v. Rolon, 220 A.D.2d 543, 632 N.Y.S.2d 208).   Accordingly, we have examined the defendant's contention that the sentence was excessive but find it to be without merit (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).


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