People v. Benjamin

210 A.D.2d 702, 621 N.Y.S.2d 937, 1994 N.Y. App. Div. LEXIS 12776

Opinion

—Appeal from a judgment of the County Court of Tioga County (Siedlecki, J.), rendered September 23, 1987, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

Defendant pleaded guilty to the crime of murder in the second degree and was sentenced to a term of imprisonment of 20 years to life. We find no merit to defendant’s argument that his plea allocution did not sufficiently establish the elements of the crime of murder in the second degree. Defendant contends that because he indicated in his colloquy with County Court that the victim’s first gunshot wound was accidental, he would not be guilty of murder in the second degree if the victim was killed by that wound. Examination of the transcript of the allocution reveals, however, that defendant intentionally shot the victim in the head a second time while she was still alive. We also find that County Court properly denied defendant’s motion to suppress statements made by him. Defendant was not in custody when he made statements to police investigating the victim’s disappearance. Further, statements made to inmates when defendant was incarcerated were spontaneous and unsolicited.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed.