Opinion
06-16-2015
The PEOPLE of the State of New York, Respondent, v. Darryl BRYAN, Defendant–Appellant.
Marianne Karas, Thornwood, for appellant. Robert T. Johnson, District Attorney, Bronx (Paul B. Hershan of counsel), for respondent.
Marianne Karas, Thornwood, for appellant.
Robert T. Johnson, District Attorney, Bronx (Paul B. Hershan of counsel), for respondent.
Opinion
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered May 14, 2013, convicting defendant, upon his plea of guilty, of burglary in the second degree, and sentencing him to a term of six years, unanimously affirmed.
Since defendant did not move to withdraw his plea, his challenge to the voluntariness of the plea is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. During the plea allocution itself, defendant admitted his guilt and said nothing that negated any element of the crime or raised any defenses (see People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995] ). Accordingly, the court had no obligation to conduct a sua sponte inquiry into postplea statements by defendant regarding his intoxication at the time of the crime that were reflected in the presentence report (see e.g. People v. Praileau, 110 A.D.3d 415, 971 N.Y.S.2d 533 [1st Dept.2013], lv. denied 22 N.Y.3d 1201, 986 N.Y.S.2d 422, 9 N.E.3d 917 [2014] ; People v. Pantoja, 281 A.D.2d 245, 721 N.Y.S.2d 535 [1st Dept.2001], lv. denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91 [2001] ).Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record including attorney-client consultations on such matters as plea negotiations, the advisability of raising an intoxication defense, and whether to make a plea withdrawal motion (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find nothing to cast doubt on counsel's effectiveness.
MAZZARELLI, J.P., SWEENY, ANDRIAS, SAXE, RICHTER, JJ., concur.