People v. Hilligas — 291 A.D.2d 926

Majority

p. 926

The People of the State of New York, Respondent, v Brian Hilligas, Appellant.

[738 NYS2d 274]

—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.

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 [2]), 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 NY2d 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 Regis

p. 927

ter, 60 NY2d 270 , 276-279, cert denied 466 US 953 ; People v Johnson, 277 AD2d 702 , 704, lv denied 96 NY2d 831 ; People v Williams, 186 AD2d 770 , lv denied 81 NY2d 767 ; People v Moquin, 142 AD2d 347 , 352; see generally, Penal Law § 15.05 [3]). 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 AD2d 904 , lv denied 96 NY2d 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 NY2d 638 , 643-644; People v Benedict, 202 AD2d 758 , 759-760, l v denied 83 NY2d 964 ; People v Haley, 195 AD2d 873 , 875, lv denied 82 NY2d 896 ). The remaining contentions of defendant are encompassed by his comprehensive waiver of his right to appeal (see, People v Kemp, 94 NY2d 831 , 833; People v Muniz, 91 NY2d 570 , 574-575; see also, People v Moissette, 76 NY2d 909 , 911-912). Present — Hayes, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.

Cases cited

People v. Lopez 71 NY2d 662 N.Y. 1988-06-02 at 666 p. 926
People v. Register 60 NY2d 270 N.Y. 1983-11-29 at 276-279 p. 927
People v. Johnson 277 AD2d 702 N.Y. App. Div. 2000-11-22 at 704 p. 927
People v. Lykes 81 NY2d 767 N.Y. 1993-01-12 p. 927
People v. Moquin 142 AD2d 347 N.Y. App. Div. 1988-12-29 at 352 p. 927
People v. Fardan 82 NY2d 638 N.Y. 1993-12-21 at 643-644 p. 927
People v. Benedict 202 AD2d 758 N.Y. App. Div. 1994-03-10 at 759-760 p. 927
People v. Haley 195 AD2d 873 N.Y. App. Div. 1993-07-29 at 875 p. 927
People v. Kemp 94 NY2d 831 N.Y. 1999-12-02 at 833 p. 927
People v. Muniz 91 NY2d 570 N.Y. 1998-06-04 at 574-575 p. 927
People v. Moissett 76 NY2d 909 N.Y. 1990-10-16 at 911-912 p. 927