People v. Espinal

Full title: The PEOPLE of the State of New York, Respondent, v. Wander ESPINAL…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Oct 4, 2012

99 A.D.3d 435 (N.Y. App. Div. 2012)

951 N.Y.S.2d 525

2012 N.Y. Slip Op. 6641

Opinion

2012-10-4

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. Cyrus R. Vance, Jr., District Attorney, New York (Sean T. Masson of counsel), for respondent.

GONZALEZ

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

GONZALEZ, P.J., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.

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 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160 [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 A.D.2d 245, 721 N.Y.S.2d 535 [1st Dept.2001], lv. denied96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91 [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 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [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 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995];Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

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