Opinion
3784.
Decided June 3, 2004.
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered May 25, 2001, convicting defendant, upon his plea of guilty, of murder in the second degree, and sentencing him to a term of 15 years to life, unanimously affirmed.
Laura R. Johnson, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Cynthia J. Pree of counsel), for respondent.
Before: Nardelli, J.P., Saxe, Williams, Friedman, Sweeny, JJ.
Since defendant's motion to withdraw his plea was made on different grounds, his claim that his plea was rendered involuntary by the court's failure to inquire about the affirmative defense to felony murder contained in Penal Law § 125.25(3) is unpreserved ( People v. Townsend, 257 A.D.2d 458), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant's plea was knowing, intelligent and voluntary, and that nothing in the record of the plea proceeding raised the possibility of the affirmative defense ( see People v. Toxey, 86 N.Y.2d 725).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.