Opinion
December 21, 1995
Appeal from the Supreme Court, Bronx County (Richard Price, J.).
Defendant's claim that his plea allocution was insufficient because the court failed to inquire about a possible justification defense is unpreserved for appellate review as a matter of law, since defendant neither moved to withdraw the plea before sentencing on such ground nor to vacate the judgment of conviction ( People v Toxey, 86 N.Y.2d 725, affg 202 A.D.2d 330). The narrow exception to the preservation rule explained in People v Lopez ( 71 N.Y.2d 662, 666) does not apply, since in neither the allocution nor the motion to withdraw the plea did defendant indicate that he fired the shots at the group of men because he feared that they were about to attack him and his friends, or otherwise say anything to cast "significant doubt" upon his guilt ( People v Toxey, supra). It is of no moment that the plea court was aware that defendant's post arrest statements raised a justification defense, since defendant did not reiterate those statements at his plea allocution.
Defendant's contention that the court erred in summarily denying his pro se motion to withdraw the plea without appointing new counsel and conducting a hearing to determine whether the plea was the result of coercion by counsel is not preserved for appellate review (CPL 470.05; see, People v Campbell, 200 A.D.2d 364, lv denied 83 N.Y.2d 869). Counsel's pessimism regarding defendant's chances at trial and his advice to accept the plea do not indicate ineffective assistance ( see, People v Rivera, 71 N.Y.2d 705, 709).
Concur — Rosenberger, J.P., Rubin, Kupferman, Asch and Mazzarelli, JJ.