Opinion
2017-45 RI CR
10-30-2020
The PEOPLE of the State of New York, Respondent, v. Omar ESPINOZA, Appellant.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Richmond County District Attorney (Alexander Fumelli of counsel), for respondent.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Richmond County District Attorney (Alexander Fumelli of counsel), for respondent.
PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ
ORDERED that the judgments of conviction are affirmed.
Defendant appeals from two judgments, each convicting him, upon his plea of guilty, of attempted criminal possession of stolen property in the fifth degree ( Penal Law §§ 110.00, 165.40 ). Upon finding that prior counsel's Anders brief (see Anders v California , 386 US 738 [1967] ) was inadequate, this court held the appeal in abeyance and new counsel was assigned to prosecute the appeal ( 65 Misc 3d 133[A], 2019 NY Slip Op 51611[U] ). New counsel has submitted a brief arguing, in essence, that the factual allocution at the plea proceeding was insufficient.
Initially, we note that defendant's contention is reviewable on appeal despite the fact that he did not move to withdraw his pleas or vacate the judgments of conviction, as defendant, having pleaded guilty and been sentenced in the same proceeding, "faced a practical inability to move to withdraw [his] pleas" ( People v Conceicao , 26 NY3d 375, 382 [2015] ; see People v Williams , 27 NY3d 212, 219-223 [2016] ; People v Sougou , 26 NY3d 1052, 1054 [2015] ; People v Cappiello , 60 Misc 3d 139[A], 2018 NY Slip Op 51168[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ).
"[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime. Nor is the court's duty to inquire further triggered merely by the failure of a pleading defendant, whether or not represented by counsel, to recite every element of the crime pleaded to" ( People v Goldstein , 12 NY3d 295, 301 [2009] [internal quotation marks, brackets, ellipsis and citation omitted]; see People v Seeber , 4 NY3d 780, 781 [2005] ). A plea allocution is sufficient if it "shows that the defendant understood the charges and made an intelligent decision to enter a plea" ( People v Goldstein , 12 NY3d at 301 ; see People v Ramos , 164 AD3d 922, 923 [2018] ). During the colloquy, the Criminal Court advised defendant of the constitutional rights he was forfeiting by pleading guilty. Defendant confirmed that he was willing to give up those rights by pleading guilty and understood the immigration consequences, including deportation, of his guilty pleas, that he had had enough time to discuss the pleas with his attorney, and that no one had forced him to plead guilty. Defendant then admitted to conduct, on each of the two specified dates, constituting the offense of attempted criminal possession of stolen property in the fifth degree. We find that the record demonstrates that defendant, who was represented by counsel, "clearly understood the nature of the [offense] to which he was pleading and willingly entered his plea[s] to obtain the benefit of the bargain he had struck" ( People v Goldstein , 12 NY3d at 301 ; see People v Robinson , 61 Misc 3d 130[A], 2018 NY Slip Op 51417[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; People v Bosticco , 52 Misc 3d 140[A], 2016 NY Slip Op 51169[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ).
Accordingly, the judgments of conviction are affirmed.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.