                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   103610
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

LEE W. DOANE,
                    Appellant.
________________________________


Calendar Date:   October 20, 2016

Before:   McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

                             __________


      Patrick A. Perfetti, Cortland, for appellant, and appellant
pro se.

      Weeden A. Wetmore, District Attorney, Elmira (Terry
Northrup of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from a judgment of the County Court of Chemung
County (Buckley, J.), rendered November 2, 2009, convicting
defendant upon his plea of guilty of the crime of murder in the
second degree.

      Pursuant to a negotiated plea agreement, defendant pleaded
guilty to a single count of murder in the second degree.
Consistent with the terms of that plea agreement, County Court
sentenced defendant to 23 years to life in prison. Defendant
appeals. We affirm.

      Defendant contends that his guilty plea was not knowing and
voluntary because County Court did not make an adequate inquiry
                              -2-                103610

into a possible intoxication defense. As an initial matter, in
light of defendant's statements made during the plea colloquy
concerning his alcohol consumption at the time of the crime,
defendant's failure to make an appropriate postallocution motion
is not fatal to his claim, which remains reviewable (see People v
McNulty, 70 AD3d 1127, 1128 [2010]; People v Carter, 62 AD3d
1154, 1154 [2009], lv denied 13 NY3d 795 [2009]; People v
Maldonado, 254 AD2d 574, 574 [1998]). The specific intent to
cause the death of another person is an element of the crime of
murder in the second degree (see Penal Law § 125.25 [1]), and
such element may be negated by the potential defense of
intoxication (see People v Thomson, 279 AD2d 644, 644-645
[2001]). As such, defendant's awareness of the right to present
such evidence is generally essential to a knowing and voluntary
guilty plea (see People v Decenzo, 132 AD3d 1160, 1161 [2015], lv
denied 27 NY3d 996 [2016]; People v Thomson, 279 AD2d at 645).

      During the allocution, after defendant indicated that he
had consumed alcohol immediately prior to committing the crime,
County Court was obligated to inquire at that time whether
defendant was aware of a potential intoxication defense and
ensure that defendant was knowingly and voluntarily waiving that
defense (see People v Thomson, 279 AD2d at 645; People v Osgood,
254 AD2 571, 572 [1998]; People v Braman, 136 AD2d 382, 384
[1988], lv denied 72 NY2d 911 [1988]). Under the circumstances
of this case, however, we conclude that defendant's plea was
nonetheless made knowingly and voluntarily because of defendant's
admissions during the allocution that obviated the need for any
further inquiry by County Court. In this regard, defendant's
recollection of the incident in question was not equivocal.
Rather, defendant provided detailed and vivid facts of the crime,
and his statements did not reveal that his mental capacity was
somehow diminished when he stabbed the victim (see People v
Hampton, 142 AD3d 1305, 1306 [2016]; People v Morgan, 84 AD3d
1594, 1594 [2011], lv denied 17 NY3d 819 [2011]; People v Beach,
306 AD2d 753, 754 [2003]). Additionally, we are satisfied that
County Court adequately discussed with defendant the affirmative
defense of extreme emotional disturbance and ensured that
defendant had discussed that defense with his attorney and
knowingly waived the right to pursue it (see People v Hampton,
142 AD3d at 1306).
                              -3-                  103610

      Turning to defendant's ineffective assistance of counsel
claim, he contends that his counsel failed to object to County
Court's improper acquisition and reference at sentencing to
presentence reports that were prepared for sentencing in
defendant's prior unrelated criminal actions (see CPL 390.50
[1]). Even if we agreed with defendant that disclosure in this
collateral matter of the prior presentence reports was improper
absent "authorization of the court[s]" that previously sentenced
him (CPL 390.50 [1]; see People v Fishel, 128 AD3d 15, 17-18
[2015]; Matter of Blanche v People, 193 AD2d 991, 991-992
[1998]), he has neither demonstrated how he was prejudiced or
aggrieved by the information contained in those reports (see CPL
390.30 [1], [2]), nor shown how such information affected his
sentence where County Court sentenced him in accord with the
negotiated plea agreement and the agreed-upon sentence of 23
years to life in prison (see People v Schreiner, 140 AD3d 1399,
1400 [2016]). Inasmuch as the balance of defendant's claims
concern what counsel advised him or other matters that are
outside of the record on appeal, those claims are more
appropriately addressed in a motion pursuant to CPL article 440
where a record could be made (see People v Clark, 135 AD3d 1239,
1240 [2016], lv denied 27 NY3d 995 [2016]; People v Pickett, 128
AD3d 1275, 1276 [2015], lvs denied 26 NY3d 930, 933 [2015]). We
have considered defendant's remaining contentions and find them
to be without merit.

     McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
