| People v Ospina |
| 2019 NY Slip Op 06102 [175 AD3d 513] |
| August 7, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Richard Ospina, Appellant. |
Matthew Muraskin, Port Jefferson, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Cristin N. Connell of counsel; Matthew C.Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (AnthonyW. Paradiso, J., at plea; Fran Ricigliano, J., at sentence), rendered May 8, 2018, convicting himof burglary in the second degree (two counts) and attempted burglary in the second degree (twocounts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant validly waived his right to appeal (see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256[2006]). However, the defendant's arguments related to the voluntariness of his plea and thelegality of his sentence survive his valid appeal waiver (see People v Lopez, 6 NY3d at255; People v Ramos, 164 AD3d922, 922 [2018]; People vSmith, 146 AD3d 904, 904 [2017]; People v Magnotta, 137 AD3d 1303, 1303 [2016]).
The defendant's contention that his plea of guilty was not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review, since he did not move to withdraw theplea (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Gomez, 171 AD3d 944[2019]; People v Hernandez, 110AD3d 919, 919 [2013]; People vDevodier, 102 AD3d 884, 884 [2013]). Moreover, contrary to the defendant'scontention, the exception to the preservation requirement does not apply here, since the pleaallocution did not cast significant doubt upon the defendant's guilt, negate an essential element ofthe crime, or call into question the voluntariness of the plea (see People v Lopez, 71NY2d at 666; People v Peralta, 171AD3d 948 [2019]; People v Ramos, 164 AD3d at 922-923). In any event, thedefendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligentlyentered is without merit, as the record as a whole affirmatively demonstrates that the defendantentered his plea knowingly, voluntarily, and intelligently (see People v Conceicao, 26 NY3d 375, 383 [2015]; People vHarris, 61 NY2d 9, 19 [1983]).
Contrary to the defendant's contention, since he did not move to withdraw his plea prior tosentencing, and since there was nothing in his plea allocution that would cast doubt on his guiltor otherwise call into question the voluntariness of his plea, the Supreme Court was under noobligation to conduct a sua sponte inquiry into certain statements he made to the probationofficers who prepared the presentence report and addendum thereto (see People v Castro, 102 AD3d546, 547 [2013]; People vEspinal, 99 AD3d 435, 435-436 [2012]; People v Pantoja, 281 AD2d 245, 246[2001]). Moreover, although the defendant argues otherwise, the statements at issue did notnegate any element of the crimes (seePeople v Clark, 23 AD3d 673, 674 [2005]). The defendant's additional contention thathe was deprived of his right to the effective assistance of counsel by counsel's failure to raise theissue before the sentencing court is without merit (see People v Baldi, 54 NY2d 137, 147[1981]).
Criminal Procedure Law § 380.50 (1) provides that "[a]t the time ofpronouncing sentence, the court must accord the prosecutor an opportunity to make a statementwith respect to any matter relevant to the question of sentence. The court must then accordcounsel for the defendant an opportunity to speak on behalf of the defendant. The defendant alsohas the right to make a statement personally in his or her own behalf, and before pronouncingsentence the court must ask the defendant whether he or she wishes to make such a statement."The defendant's contention that he was denied his statutory right to address the Supreme Courtpursuant to Criminal Procedure Law § 380.50 (1) is unpreserved for appellatereview (see People v Green, 54 NY2d 878, 880 [1981]) and, in any event, belied by therecord. Chambers, J.P., Maltese, Duffy and Christopher, JJ., concur.