
    The People of the State of New York ex rel. Victor Fonseca, Appellant, v. J. Edwin La Vallee, as Warden of Clinton Prison, Respondent.
   Reynolds, J.

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. Bnelling, 33 Mise 2d 735) and the inconsistency between felony murder and second degree murder did not render the conviction invalid (People v. Bagonese, 55 Mise 2d 105; People v. Bofill, 34 Mise 2d 574; People v. Lyons, 19 Mise 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.  