| People v Almodovar |
| 2016 NY Slip Op 06247 |
| Decided on September 29, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 29, 2016
Mazzarelli, J.P., Acosta, Saxe, Moskowitz, Gesmer, JJ.
1749 3946/08
v
Eshawn Almodovar, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin G. Wiener of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered September 6, 2011, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 20 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding for a youthful offender determination, and otherwise affirmed.
Defendant's ineffective assistance of counsel argument involves matters not reflected in, or fully explained by, the record, and thus requires a CPL 440.10 motion. Although defendant raised his present claim in such a motion, the motion was denied and a justice of this Court denied leave to appeal. Accordingly, our review is limited to the trial record (see People v Evans, 16 NY3d 571, 575 [2011]), and to the extent that record permits review, we conclude that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 U.S. 668 [1984]). Defendant has not established that counsel's decision to rest on the record at the suppression hearing was ineffective, since there is no indication that any suppression argument would have had any chance of success. In particular, the hearing evidence demonstrated that the interrogating officer gave defendant Miranda warnings before any questioning, and that the officer did not make any remarks of the type condemned in People v Dunbar (24 NY3d 304 [2014], cert denied 575 US __, 135 S. Ct. 2052 [2015]), or that otherwise undermined the effect of the warnings.
Defendant did not preserve his challenge to his plea allocution, which does not come within the narrow exception to the preservation requirement (see People v Williams, 27 NY3d 212, 219 [2016]; People v Lopez, 71 NY2d 662, 665—666 [1988]), and we decline to review it in the interest of justice. As an alternative holding, we find that the plea was knowing, intelligent and voluntary. Nothing in the plea allocution cast doubt on defendant's guilt or raised a potentially viable defense regarding the justifiable use of deadly force.
However, as the People concede, defendant is entitled to resentencing pursuant to People v Rudolph (21 NY3d 497 [2013]) for a youthful offender determination.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 29, 2016
CLERK