People v. Hazen

Judgment, Supreme Court, New York County, rendered July 5, 1979, convicting defendant, upon his plea of guilty, of manslaughter, first degree, and sentencing him to an indeterminate term of 10 years, modified as a matter of discretion in the interest of justice to reduce the sentence to an indeterminate term of three years, and, as so modified, the judgment is affirmed. We find the sentence excessive to the extent indicated. The minutes of the plea proceeding are accurately stated in the dissenting opinion, as are the background facts with one telling exception. The dissent suggests that it was only a claim of the District Attorney that the last two shots were fired in the street and states that whether they were fatal shots is open to speculation. Actually, the defendant acknowledged: “that the last shots were fired when Mr. Kruglak was out in the street. And he was not armed. And that those bullets contributed to killing him”; “that they are going to have a witness, if they had a trial, who would say that after you shot him, he run out of the store, and you shot him again”. The court accepted this acknowledgment and did not, unlike People v Serrano (15 NY2d 304) cited by the dissent, disregard or contradict the defendant’s version. Unlike People v Patterson (21 AD2d 356), relied upon by the dissent, where the evidence was so scant that the jury had to speculate whether the defendant was an initial aggressor, a subsequent aggressor or a self-defending victim, the defendant’s concession of facts here established his guilt of the crime to which he pleaded. The defendant was indicted for murder and he freely and knowingly elected to plead guilty to manslaughter. No exceptions were taken to the plea nor were any motions made to set it aside. We find no reason to exercise our discretion in the interest of justice to annul it. Difficulty has arisen only because the defendant constantly reiterated a belief in justification or self-defense that he had formulated in his own mind — that he should be absolved of responsibility for shooting an unarmed man five times solely because the victim had been the original aggressor. But the persuasive factor is that, having said this, he refused to go to trial on this defense, even though it was at least twice suggested to him by the court. He wanted to put an end to the matter. He acknowledged that he was guilty of manslaughter. We find it implicit in the minutes of the plea proceeding that the defendant insisted upon accepting the advice of his counsel, whose competence has never been challenged, rather than chance his own theory of defense. We find it also implicit that the defendant was willing to accept the court’s explanation of the law of justification, which, given the acknowledged facts, was not erroneous (see Penal Law, §35.15, subds 1, 2). Concur — Kupferman, J.P., Sandler and Lynch, JJ.