People v Espinal

People v Espinal 2012 NY Slip Op 06641 Decided on October 4, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 4, 2012
Gonzalez, P.J., Saxe, DeGrasse, Freedman, Román, JJ.
8205 1843/09

[*1]The People of the State of New York, Respondent,

v

Wander Espinal, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Jonathan M. Kirshbaum of counsel), for appellant.
Wander Espinal, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Sean T.
Masson of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at plea; Bonnie G. Wittner, J. at sentencing), rendered November 10, 2010, convicting defendant of murder in the first degree and two counts of conspiracy in the second degree, and sentencing him to an aggregate term of 20 years to life, unanimously affirmed.

Since defendant did not move to withdraw his plea prior to sentencing, and since there is nothing in his plea allocution that would cast doubt on his guilt or otherwise call into question the voluntariness of his plea (see People v Toxey, 86 NY2d 725 [1995]), the court was under no obligation to conduct a sua sponte inquiry into statements he made to the probation officer preparing the presentence report (see e.g. People v Pantoja, 281 AD2d 245 [1st Dept 2001], lv denied 96 NY2d 905 [2001]). In any event, the statements at issue in the presentence report do not contradict defendant's plea allocution or negate any element of the crime.

Defendant's pro se ineffective assistance of counsel claim would require a CPL 440.10 motion to expand the record (see People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v [*2]Ford, 86 NY2d 397, 404 [1995]; Strickland v Washington, 466 US 668 [1984]).

We have examined defendant's remaining pro se arguments, and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 4, 2012

CLERK