| People v Avilacruz |
| 2019 NY Slip Op 04188 [172 AD3d 1398] |
| May 29, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Herlin Avilacruz, Appellant. |
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Edward A. Bannan of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (BarbaraKahn, J.), rendered October 27, 2017, convicting him of attempted endangering the welfare of achild, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligentis unpreserved for appellate review, as the defendant did not move to withdraw his plea orotherwise raise this issue before the County Court (see People v Lopez, 71 NY2d 662,665 [1988]; People v Jackson, 114AD3d 807 [2014]). The exception to the preservation requirement does not apply becausethe defendant's allocution did not cast significant doubt on his guilt, negate an essential elementof the crime, or call into question the voluntariness of his plea (see People v Lopez, 71NY2d at 666; People v Fontanet,126 AD3d 723 [2015]). In any event, the defendant's contention is without merit. Thedefendant argues that the factual allocution at the plea proceeding was insufficient. "[A]nallocution based on a negotiated plea need not elicit from a defendant specific admissions as toeach element of the charged crime" (People v Goldstein, 12 NY3d 295, 301 [2009]; see People v Seeber, 4 NY3d 780,781 [2005]). A plea allocution is sufficient where, as here, the allocution demonstrates that thedefendant understood the charges and made an intelligent decision to enter a guilty plea (seePeople v Goldstein, 12 NY3d at 301; People v Ramos, 164 AD3d 922, 923 [2018]).
By pleading guilty, the defendant forfeited appellate review of his claim of ineffectiveassistance of counsel to the extent that the claim does not directly involve the plea negotiationprocess and sentence (see People vKing, 169 AD3d 1060 [2019]; People v Martinez, 155 AD3d 1063 [2017]). To the extent that thedefendant's contentions are related to the voluntariness of the plea, they cannot be reviewed ondirect appeal because they are based on matter outside the record on appeal (see People v Stevens, 162 AD3d1077, 1078 [2018]; People vRohlehr, 87 AD3d 603, 604 [2011]; People v Miller, 68 AD3d 1135, 1135 [2009]). The appropriatevehicle to allege ineffective assistance of counsel grounded in allegations referring to factsoutside the record is a proceeding pursuant to CPL 440.10, where matter dehors the record maybe considered (see People v Stevens, 162 AD3d at 1078; People v Rohlehr, 87AD3d at 604; People v Miller, 68 AD3d at 1135). Chambers, J.P., Miller, LaSalle andChristopher, JJ., concur.