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

The PEOPLE, etc., Respondent, v. Richard OSPINA, Appellant.


Decided: August 07, 2019

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ. Matthew Muraskin, Port Jefferson, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Cristin N. Connell of counsel;  Matthew C. Frankel on the brief), for respondent.


ORDERED that the judgment is affirmed.

The defendant validly waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  However, the defendant's arguments related to the voluntariness of his plea and the legality of his sentence survive his valid appeal waiver (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Ramos, 164 A.D.3d 922, 922, 82 N.Y.S.3d 103;  People v. Smith, 146 A.D.3d 904, 904, 44 N.Y.S.3d 771;  People v. Magnotta, 137 A.D.3d 1303, 1303, 27 N.Y.S.3d 403).

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw the plea (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Gomez, 171 A.D.3d 944, 95 N.Y.S.3d 869;  People v. Hernandez, 110 A.D.3d 919, 919, 972 N.Y.S.2d 697;  People v. Devodier, 102 A.D.3d 884, 884, 958 N.Y.S.2d 220).  Moreover, contrary to the defendant's contention, the exception to the preservation requirement does not apply here, since the plea allocution did not cast significant doubt upon the defendant's guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Peralta, 171 A.D.3d 948, 95 N.Y.S.3d 887;  People v. Ramos, 164 A.D.3d at 922–923, 82 N.Y.S.3d 103).  In any event, the defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is without merit, as the record as a whole affirmatively demonstrates that the defendant entered his plea knowingly, voluntarily, and intelligently (see People v. Conceicao, 26 N.Y.3d 375, 383, 23 N.Y.S.3d 124, 44 N.E.3d 199;  People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170).

Contrary to the defendant's contention, since he did not move to withdraw his plea prior to sentencing, and since there was nothing in his plea allocution that would cast doubt on his guilt or otherwise call into question the voluntariness of his plea, the Supreme Court was under no obligation to conduct a sua sponte inquiry into certain statements he made to the probation officers who prepared the presentence report and addendum thereto (see People v. Castro, 102 A.D.3d 546, 547, 961 N.Y.S.2d 24;  People v. Espinal, 99 A.D.3d 435, 435–436, 951 N.Y.S.2d 525;  People v. Pantoja, 281 A.D.2d 245, 246, 721 N.Y.S.2d 535).  Moreover, although the defendant argues otherwise, the statements at issue did not negate any element of the crimes (see People v. Clark, 23 A.D.3d 673, 674, 804 N.Y.S.2d 426).  The defendant's additional contention that he was deprived of his right to the effective assistance of counsel by counsel's failure to raise the issue before the sentencing court is without merit (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Criminal Procedure Law § 380.50(1) provides that “[a]t the time of pronouncing sentence, the court must accord the prosecutor an opportunity to make a statement with respect to any matter relevant to the question of sentence.  The court must then accord counsel for the defendant an opportunity to speak on behalf of the defendant.  The defendant also has the right to make a statement personally in his or her own behalf, and before pronouncing sentence 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 Court pursuant to Criminal Procedure Law § 380.50(1) is unpreserved for appellate review (see People v. Green, 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415) and, in any event, belied by the record.