Opinion
10563 Ind. 704/18
12-12-2019
The PEOPLE of the State of New York, Respondent, v. Edwin ESPINAL, Defendant–Appellant.
Marianne Karas, Thornwood, for appellant. Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Marianne Karas, Thornwood, for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Webber, Gesmer, JJ.
Judgment, Supreme Court, Bronx County (George R. Villegas, J. at plea; Raymond L. Bruce, J. at sentencing), rendered September 27, 2018, convicting defendant of attempted burglary in the second degree, and sentencing him to a term of 3 years, unanimously affirmed.
Regardless of whether defendant's arguments survive his waiver of his right to appeal, we find them unavailing.
Defendant did not preserve his claim that the court should have conducted an inquiry under People v. Outley (80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ) into whether he violated the conditions of his plea agreement (see e. g. People v. Saxon , 28 A.D.3d 330, 331, 813 N.Y.S.2d 417 [1st Dept. 2006], lv denied 7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259 [2006] ), and we decline to review it in the interest of justice.
Defendant's claim that his counsel rendered ineffective assistance by abandoning a request for an Outley inquiry is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.
We perceive no basis for reducing the sentence.