Opinion
January 31, 1983
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Boomer, JJ.
Judgment unanimously affirmed. Memorandum: On appeal defendant urges that the court erred in accepting his plea of guilty to manslaughter, first degree (Penal Law, § 125.20, subd 1 [causing death while intending to cause serious physical injury]), in satisfaction of an indictment charging two counts of murder, second degree (Penal Law, § 125.25, subds 1 [intentional murder], 3 [felony murder]), and numerous lesser crimes arising out of an attempted bank robbery in which a security guard was shot and killed by a codefendant. At the plea taking, defendant admitted his participation in the planning and attempted execution of the robbery and his knowledge that two of his accomplices were armed although he was not. He denied, however, intending to cause serious physical injury or death to the guard. Because of his denial, defendant urges, his recitation of the facts lacks a requisite element of manslaughter, first degree (Penal Law, § 125.20, subd 1), and thus the court committed reversible error in proceeding to accept the plea thereto without further inquiry ( People v. Lee, 90 A.D.2d 960). This case, however, is distinguishable from Lee because here defendant's admissions do support a finding of guilt of one of the higher crimes charged — viz., felony murder — which was satisfied by the plea. Moreover, it has been held that "[a] bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed" (see People v. Clairborne, 29 N.Y.2d 950, 951, quoted in People v. Kazmarick, 52 N.Y.2d 322, 326; People v. Colon, 77 A.D.2d 370; People v. Du Bray, 76 A.D.2d 976).