Opinion
May 21, 1970
Appeal from a judgment of the Supreme Court, Clinton County, denying a writ of habeas corpus, without a hearing. In 1959 appellant, who had been indicted for felony murder in the first degree (former Penal Law, § 1044, subd. 2), was permitted, at the request of his assigned counsel, to withdraw his plea of not guilty to the indictment and to enter a plea of guilty to murder in the second degree (former Penal Law, § 1046) which was accepted. Appellant urges that it was improper to accept his plea to a crime requiring the element of intent for conviction (former Penal Law, § 1046) when the appellant had in fact been indicted by the Sullivan County Grand Jury for a crime which did not require the element of intent, to wit felony murder (former Penal Law, § 1044, subd. 2). We cannot agree with this contention. The acceptance of the plea was not an impermissible modification of the indictment by the court ( People v. Snelling, 33 Misc.2d 735) and the inconsistency between felony murder and second degree murder did not render the conviction invalid ( People v. Ragonese, 55 Misc.2d 105; People v. Bofill, 34 Misc.2d 574; People v. Lyons, 19 Misc.2d 606). Section 6 of article I of the New York Constitution or the precepts of due process do not mandate that all the elements of the crime to which a reduced plea is made be contained in the indictment, whereas here appellant sought the plea and freely accepted it as part of a bargain struck for his own benefit ( People v. Foster, 19 N.Y.2d 150). Judgment affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur in memorandum by Reynolds, J.