Opinion
December 1, 1986
Appeal from the Supreme Court, Kings County (Felig, J.).
Ordered that the judgment is affirmed.
The defendant did not move to withdraw his plea prior to the imposition of sentence, and his claim that the plea allocution was deficient is therefore unpreserved (see, People v. Merritt, 112 A.D.2d 325; People v. Yarrish, 107 A.D.2d 836; People v Harris, 106 A.D.2d 461). His subsequent motion to vacate the judgment of conviction does not preserve such a claim (see, People v. Pascale, 48 N.Y.2d 997; People v. McKenzie, 88 A.D.2d 646).
Reversal in the interest of justice is not warranted under the circumstances. The defendant pleaded guilty to felony murder after this court had reversed his initial conviction on a plea to the same indictment (see, People v. Fuentes, 72 A.D.2d 550) because the court had not made an inquiry (see, People v Serrano, 15 N.Y.2d 304; People v. Harris, supra; People v. Riley, 91 A.D.2d 671) when the defendant's allocution raised the possibility that the statutory affirmative defense to felony murder (Penal Law § 125.25) was available to him. Since as a result of the appeal the defendant was clearly aware that this defense might be available to him, his decision to plead guilty and thereby waive his right to present the defense at trial was knowing and voluntary, as the colloquy at his second plea and sentence confirms, and the interest of justice does not require reversal (see, People v. Demonde, 111 A.D.2d 867; People v Santiago, 100 A.D.2d 857; People v. Moore, 91 A.D.2d 1050).
The defendant's claim that the sentence imposed was excessive is without merit. The sentence he received, 15 years to life, is the minimum permitted for the crime of murder in the second degree (see, Penal Law § 70.00, [3] [a] [i]; § 125.25) and therefore cannot be reduced as a matter of discretion (see, People v. Ortiz, 105 A.D.2d 809). The imposition of such a sentence under the circumstances here is not unconstitutional (see, People v. Donovan, 59 N.Y.2d 834; People v. Jones, 39 N.Y.2d 694). Thompson, J.P., Bracken, Rubin and Spatt, JJ., concur.