People v. Espinal

• Decision Date: 06 April 2010
• Citation: 72 A.D.3d 701,897 N.Y.S.2d 644
• Parties: The PEOPLE, etc., respondent, v. Manuel ESPINAL, appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 644

72 A.D.3d 701

The PEOPLE, etc., respondent,

v.Manuel ESPINAL, appellant.

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

April 6, 2010.

Edwin Ira Schulman, Kew Gardens, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Sharon Y. Brodt of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered December 22, 2003, convicting him of attempted conspiracy in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that his plea of guilty was knowingly, voluntarily, and intelligently made ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108;People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653; People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687). To the extent that the defendant's contention that he was induced to plead guilty by his attorney's misrepresentation that he would be eligible for shock incarceration is based on matter dehors the record, it may not be reviewed on direct appeal ( see People v. Haynes, 39 A.D.3d 562, 564, 833 N.Y.S.2d 193). Insofar as we are able to review that claim, it is refuted by the plea minutes, which demonstrate that counsel clearly and unequivocally stated on the record that he did not think that the defendant was eligible for such treatment.

SKELOS, J.P., DILLON, ANGIOLILLO, ENG and SGROI, JJ., concur.