Opinion
KA 99-05280
February 1, 2002.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered March 25, 1999, convicting defendant upon his plea of guilty of murder in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRIAN HILLIGAS, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25), defendant contends that Supreme Court erred in accepting his plea without conducting further inquiry concerning a possible defense of intoxication ( see generally, People v. Lopez, 71 N.Y.2d 662, 666). That contention lacks merit, inasmuch as intoxication is not a defense to a crime based on the culpable mental state of recklessness ( see, People v. Register, 60 N.Y.2d 270, 276-279, cert denied 466 U.S. 953; People v. Johnson, 277 A.D.2d 702, 704, lv denied 96 N.Y.2d 831; People v. Williams, 186 A.D.2d 770, lv denied 81 N.Y.2d 767; People v. Moquin, 142 A.D.2d 347, 352; see generally, Penal Law § 15.05). Defendant further contends that he received ineffective assistance of counsel based on the failure of defense counsel to pursue the affirmative defense of extreme emotional disturbance. Even assuming, arguendo, that the contention of defendant survives his guilty plea ( see, People v. Brown, 284 A.D.2d 904, lv denied 96 N.Y.2d 916), we conclude that it lacks merit. Extreme emotional disturbance is not a defense to a charge of depraved indifference murder ( see, People v. Fardan, 82 N.Y.2d 638, 643-644; People v. Benedict, 202 A.D.2d 758, 759-760, lv denied 83 N.Y.2d 964; People v. Haley, 195 A.D.2d 873, 875, lv denied 82 N.Y.2d 896). The remaining contentions of defendant are encompassed by his comprehensive waiver of his right to appeal ( see, People v. Kemp, 94 N.Y.2d 831, 833; People v. Muniz, 91 N.Y.2d 570, 574-575; see also, People v. Moissette, 76 N.Y.2d 909, 911-912).