People v. Avilacruz, 2018–02726

• Decision Date: 29 May 2019
• Docket Number: 2018–02726,Ind No. 85/17
• Citation: 172 A.D.3d 1398,99 N.Y.S.3d 656 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Herlin AVILACRUZ, Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1398

99 N.Y.S.3d 656 (Mem)

The PEOPLE, etc., Respondent,

v.Herlin AVILACRUZ, Appellant.

2018–02726

Ind No. 85/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 18, 2019

May 29, 2019

Laurette D. Mulry, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Barbara Kahn, J.), rendered October 27, 2017, convicting him of attempted endangering the welfare of a child, 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 intelligent is unpreserved for appellate review, as the defendant did not move to withdraw his plea or otherwise raise this issue before the County Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ). The exception to the preservation requirement does not apply because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371 ). In any event, the defendant's contention is without merit. The defendant argues that the factual allocution at the plea proceeding was insufficient. "[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime" ( People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ). A plea allocution is sufficient where, as here, the allocution demonstrates that the defendant understood the charges and made an intelligent decision to enter a guilty plea (see People v. Goldstein, 12 N.Y.3d at 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103 ).

By pleading guilty, the defendant forfeited appellate review of his claim of ineffective assistance of counsel to the extent that the claim does not directly involve the plea negotiation process and sentence (see People v. King, 169 A.D.3d 1060, 92 N.Y.S.3d 895 ; People v. Martinez, 155 A.D.3d 1063, 64 N.Y.S.3d 587 ). To the extent that the defendant's contentions are related to the voluntariness of the plea, they cannot be reviewed on direct appeal because they are based on matter outside the record on appeal (see People v. Stevens, 162 A.D.3d 1077, 1078, 75 N.Y.S.3d 539 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ; People v. Miller, 68 A.D.3d 1135, 1135, 892 N.Y.S.2d 152 ). The appropriate vehicle to allege ineffective assistance of counsel grounded in allegations referring to facts...