People v. Fason

135 A.D.2d 983, 522 N.Y.S.2d 704, 1987 N.Y. App. Div. LEXIS 52877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1987
• Status: Published

Opinion

— Casey, J.

Appeal from a judgment of the County Court of Columbia County (Leaman, J.), rendered February 7, 1986, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

Defendant contends that his guilty plea should not have been accepted by County Court since the allocution indicated a defense of justification or self-defense. The allocution, however, clearly and unequivocally established that defendant was the initial aggressor in the confrontation which led to defendant’s shooting of decedent, and defendant never claimed that he withdrew from the encounter. In addition, although defendant stated that he was afraid of decedent, he admitted that decedent had nothing in his hands and had not reached for any weapon when defendant shot him from a distance of 20 to 30 feet. Nor did defendant claim that he could not safely retreat. The defense of justification is not applicable in these circumstances (see, Penal Law § 35.15 [1] [b]; [2] [a]; see also, People v Mungin, 106 AD2d 519).

Defendant also contends that his plea was coerced as a result of certain statements made by County Court and the prosecutor, but he never moved to withdraw his plea (see, People v Sickler, 117 AD2d 880, 881, lv denied 67 NY2d 1057). In any event, the record shows that defendant had several weeks to consider the plea offer before he was advised that he must either accept the offer or proceed to trial. We find no merit in the arguments raised in defendant’s supplemental brief. The judgment of conviction should, therefore, be affirmed.

Judgment affirmed. Kane, J. P., Main, Casey, Weiss and Levine, JJ., concur.