People v. Masterson, 57 A.D.3d 1443 (N.Y. App. Div. 4th Dep't 2008). · Go Syfert
People v. Masterson, 57 A.D.3d 1443 (N.Y. App. Div. 4th Dep't 2008). Cases Citing This Book View Copy Cite
5 citation events (5 in the last 25 years) across 1 distinct court.
Cited for
At page 1443 Affirmative defense under penal law section 160.153 citing cases2 listed here
  • People v. Mobayed, 2018 NY Slip Op 773 (N.Y. App. Div. 4th Dep't 2018).published
    Nothing defendant said during the plea colloquy itself raised the possibility that the affirmative defense under Penal Law § 160.15 (4) was applicable ( see People v Vogt , 150 AD3d 1704, 1705 [4th Dept 2017]; People v Masterson , 57 AD3d…
  • People v. Gibson, 140 A.D.3d 1786 (N.Y. App. Div. 4th Dep't 2016).published 2 cites
    Contrary to defendant’s further contention, we conclude that the court was not obligated to conduct any inquiry of him concerning the statutory affirmative defense to felony murder (see generally Penal Law § 125.25 [3]) because nothing in…
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Brian Masterson
Appellate Division of the Supreme Court of the State of New York.
Dec 31, 2008.
Published opinion
57 A.D.3d 1443
Cited by 5 opinions  |  Published

Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of six counts of robbery in the first degree (Penal Law § 160.15 [4]), defendant contends that he was denied effective assistance of counsel. To the extent that the contention of defendant survives his guilty plea and valid waiver of the right to appeal (see generally People v Fifield, 24 AD3d 1221, 1222 [2005], lv denied 6 NY3d 775 [2006]), we conclude that it lacks merit. The record establishes that defendant “receive [d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v Ford, 86 NY2d 397, 404 [1995]). By failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]). According to defendant, the plea allocution was factually insufficient based on the alleged applicability of the affirmative defense that the handgun used in the robberies “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (Penal Law § 160.15 [4]). Nothing in the plea allocution raised the possibility that the affirmative defense was applicable (see People v Trapp, 15 AD3d 916 [2005], lv denied 4 NY3d 891 [2005]; People v Costanza, 244 AD2d 988 [1997]), however, and thus defendant’s contention does not fall within the rare case exception to the preservation rule (see Lopez, 71 NY2d at 666). Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91 NY2d 733, 737 [1998]). Present — Martoche, J.E, Smith, Green and Pine, JJ.