People v. Nightingale

• Decision Date: 23 March 1992
• Citation: 581 N.Y.S.2d 389,181 A.D.2d 832
• Parties: The PEOPLE, etc., Respondent, v. Trevor NIGHTINGALE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 389

581 N.Y.S.2d 389

181 A.D.2d 832

The PEOPLE, etc., Respondent, v. Trevor NIGHTINGALE, Appellant.

Supreme Court, Appellate Division, Second Department.

March 23, 1992.

Philip L. Weinstein, New York City (Stephen R. Scarborough, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Jodi L. Mandel, of counsel; Angela P. Miller, on the brief), for respondent.

MEMORANDUM BY THE COURT.

Before BALLETTA, J.P., and O'BRIEN, COPERTINO and PIZZUTO, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered June 28, 1990, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review the issue of the sufficiency of his plea allocution (see, People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Horn, 161 A.D.2d 492, 555 N.Y.S.2d 759; People v. Hladky, 158 A.D.2d 616, 618, 551 N.Y.S.2d 587). Even if we were to find that the defendant's claim falls within the narrow exception to the preservation rule (see, People v. Lopez, supra, 71 N.Y.2d at 667, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Thomas, 159 A.D.2d 529, 530, 552 N.Y.S.2d 394), reversal would not be required. Subsequent to the defendant's statement at the sentencing proceeding that he had killed the victim while under extreme emotional distress and that he did not intend to kill her, the court recessed to allow the defendant to confer with his attorney. When the proceedings resumed the court made several inquiries regarding the defendant's state of mind at the time of the stabbing to which the defendant responded by explaining that he did not "plan" to kill the victim but that once they got into an argument and he began stabbing her, he intended to kill her (see, People v. Lopez, supra; People v. Horn, supra; People v. Kalwasinski, 160 A.D.2d 732, 553 N.Y.S.2d 802). Accordingly, we find no basis for reversal of the defendant's conviction and vacatur of his plea.