Opinion
2017–06961 Ind. No. 430/14
11-25-2020
The PEOPLE, etc., Respondent, v. Santos Elena RUIZ–SOLANO, Appellant.
Laurette D. Mulry, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant, and appellant pro se. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant, and appellant pro se.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen L. Braslow, J.), rendered March 2, 2017, convicting her of murder in the second degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that her plea of guilty was not knowing, voluntary, and intelligent. The defendant failed to preserve this contention for appellate review since she did not move to vacate her plea or otherwise raise the issue before the County Court (see CPL 470.05[2] ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Booker, 184 A.D.3d 772, 124 N.Y.S.3d 214 ). Moreover, contrary to the defendant's contention, the exception to the preservation requirement does not apply here, since the plea allocution did not cast significant doubt upon the defendant's guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Pray, 183 A.D.3d 842, 842, 124 N.Y.S.3d 59 ; People v. Loftus, 183 A.D.3d 631, 632, 121 N.Y.S.3d 635 ). In any event, the defendant's contention is without merit, as the record as a whole affirmatively demonstrates that the defendant entered her plea of guilty knowingly, voluntarily, and intelligently (see People v. Sougou, 26 N.Y.3d 1052, 1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ; People v. Pray, 183 A.D.3d at 842, 124 N.Y.S.3d 59 ; People v. Loftus, 183 A.D.3d at 632, 121 N.Y.S.3d 635 ). Contrary to the defendant's contention, the chronology in which the court conducted the plea allocution does not render her plea invalid (see People v. Pray, 183 A.D.3d at 842, 124 N.Y.S.3d 59 ; People v. Martinez, 159 A.D.3d 836, 836, 69 N.Y.S.3d 820 ; see also People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199 ). To the extent that the defendant argues that she was not properly informed of the deportation consequences of pleading guilty, that contention is belied by the record, which reveals that the court advised the defendant of the possibility that she would be deported (see People v. Plaza, 178 A.D.3d 958, 958–959, 112 N.Y.S.3d 581 ; People v. Ramsood, 161 A.D.3d 1198, 1199, 74 N.Y.S.3d 507 ; People v. Mohammad, 148 A.D.3d 1185, 1185, 49 N.Y.S.3d 308 ).
Contrary to the defendant's contention, since she did not move to withdraw her plea prior to sentencing, and since there was nothing in her plea allocution that would cast doubt on her guilt or otherwise call into question the voluntariness of her plea, the County Court was under no obligation to conduct a sua sponte inquiry into certain statements she made to the probation officer who prepared the presentence report (see People v. Loftus, 183 A.D.3d at 631, 121 N.Y.S.3d 635 ; People v. Ospina, 175 A.D.3d 513, 514, 107 N.Y.S.3d 59 ). In any event, the sentencing minutes demonstrate that the court conducted an inquiry at the People's request (see People v. Martinez, 159 A.D.3d at 837, 69 N.Y.S.3d 820 ).
The defendant's contention that she was denied the right to counsel of her choice at the sentencing proceeding is unpreserved for appellate review, as she never made a request for new counsel or an adjournment to retain private counsel (see CPL 470.05[2] ; People v. Orminski, 108 A.D.3d 864, 866, 968 N.Y.S.2d 266 ; People v. Ebert, 18 A.D.3d 963, 964, 794 N.Y.S.2d 733 ; see also People v. Ajin–Michicoj, 183 A.D.3d 633, 633, 121 N.Y.S.3d 641 ). In any event, it would have been a provident exercise of discretion to deny any such request made at the sentencing proceeding (see People v. Charles, 116 A.D.3d 967, 967, 983 N.Y.S.2d 828 ; People v. Harrison, 112 A.D.3d 967, 968, 977 N.Y.S.2d 374 ; People v. Martin, 41 A.D.3d 616, 617, 838 N.Y.S.2d 166 ).
By pleading guilty, the defendant forfeited appellate review of her claims of ineffective assistance of counsel that did not directly involve the plea bargaining process and sentence (see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669 ; People v. Bhuiyan, 181 A.D.3d 699, 701, 120 N.Y.S.3d 400 ; People v. Parker, 176 A.D.3d 1106, 1107, 112 N.Y.S.3d 777 ; People v. Brown, 170 A.D.3d 878, 879, 96 N.Y.S.3d 110 ). To the extent that the defendant's contention relates to alleged ineffective assistance that directly involves the plea negotiation process and sentence, it is based on matters outside the record on appeal (see People v. White, 185 A.D.3d 842, 125 N.Y.S.3d 286 ; People v. Shabazz, 174 A.D.3d 824, 825, 105 N.Y.S.3d 511 ; People v. Stevens, 162 A.D.3d 1077, 1078, 75 N.Y.S.3d 539 ). The appropriate vehicle for review of such a contention is a motion pursuant to CPL 440.10 (see People v. Shabazz, 174 A.D.3d at 825, 105 N.Y.S.3d 511 ; People v. Stevens, 162 A.D.3d at 1078, 75 N.Y.S.3d 539 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., DUFFY, CONNOLLY and IANNACCI, JJ., concur.