Opinion
June 27, 1988
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is affirmed.
Although there was evidence indicating that the defendant had been drinking on the night of the shooting and his arrest shortly thereafter, there is no evidence to show that the defendant was so intoxicated that he was unable to comprehend the meaning of his statements (see, People v Schompert, 19 N.Y.2d 300, cert denied 389 U.S. 874; People v Jenkins, 134 A.D.2d 523; People v Zito, 123 A.D.2d 799, lv denied 69 N.Y.2d 835; People v Rykaczewski, 121 A.D.2d 409, lv denied 68 N.Y.2d 917). The totality of the circumstances shows that the defendant was capable of intelligently waiving his Miranda rights (see, People v Zito, supra), and that he knowingly and voluntarily did so.
Furthermore, absent any evidence in the record that the police intentionally deprived the defendant of access to his family, there was no infringement of his rights (see, People v Fuschino, 59 N.Y.2d 91). Nor is there any evidence that the police improperly eavesdropped on the defendant's telephone call to his mother, so that the incriminating statements he made to her need not be suppressed on that ground (see, People v Sobolof, 109 A.D.2d 903).
The defendant, by failing to move at the Supreme Court to vacate or withdraw his guilty plea, has failed to preserve for appellate review his claim as to the insufficiency of the plea allocution (see, People v Pellegrino, 60 N.Y.2d 636). In any event, reversal in the interest of justice is not warranted in this case on that ground.
It is well settled that "[a] bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed" (People v Clairborne, 29 N.Y.2d 950, 951). Moreover, despite the defendant's claim that he was intoxicated at the time of the shooting, it was still possible for him to be convicted on the charge of manslaughter in the first degree (see, People v Bell, 111 A.D.2d 926, lv denied 66 N.Y.2d 917). In addition, the Supreme Court conducted a sufficient inquiry of the defendant as to the underlying facts of the incident to support the plea. Under the circumstances of this case, and in particular the totality of the plea proceedings, we find that the Supreme Court's incorrect statement that it could impose a sentence of 12 1/2 to 25 years if it accepted the plea, although the maximum legal sentence was only 8 1/3 to 25 years, did not affect the validity of the defendant's guilty plea. In the absence of any suggestion that the plea was improvident or baseless, it should be sustained (see, People v Perkins, 89 A.D.2d 956).
Finally, the sentence imposed was neither harsh nor excessive. Mangano, J.P., Bracken, Weinstein and Balletta, JJ., concur.