People v Castro

People v Castro 2013 NY Slip Op 00283 Decided on January 22, 2013 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 January 22, 2013
Friedman, J.P., Renwick, Manzanet-Daniels, Román, Clark, JJ.
9039 5546/09

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

v

Marc Castro, etc., Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David E.A.
Crowley of counsel), for respondent.

Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered October 28, 2010, convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.

Since defendant did not move to withdraw his plea, and since this case does not come within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662 [1988]), his challenge to the plea is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. At the plea allocution, defendant expressly admitted every element of the crime to which he was pleading guilty, including the fact that the stolen property was a credit card. The sentencing court was under no obligation to ask defendant about his postplea statement, reflected in the presentence report, that allegedly raised an issue about the nature of the stolen property (see e.g. People v Espinal, 99 AD3d 435 [1st Dept 2012]; People v Pantoja, 281 AD2d 245 [1st Dept 2001], lv denied 96 NY2d 905 [2001]). Moreover, defendant's statement to the probation officer did not contradict the plea allocution or negate any element of the crime.

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

ENTERED: JANUARY 22, 2013

CLERK