| People v Guerra-Pena |
| 2007 NY Slip Op 10372 [46 AD3d 1469] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DannyGuerra-Pena, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered June 3, 2005. The judgment convicted defendant, upon his plea of guilty, of rape in thefirst degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of rape inthe first degree (Penal Law § 130.35 [1]), defendant contends that his attorney became awitness against him and thus that he was denied effective assistance of counsel. We reject thatcontention. Contrary to defendant's contention, defense counsel did not take a position adverse todefendant by his comments concerning the physical appearance of an item that might have beenoffered in evidence had a trial been held and defendant's lack of cooperation in preparing adefense, nor did defense counsel's comments contribute to any rulings against defendant (see generally People v Wilmet, 9 AD3d884 [2004], lv denied 3 NY3d 683 [2004]; People v Cook, 295 AD2d 888[2002], lv denied 99 NY2d 534 [2002]). Present—Hurlbutt, J.P., Martoche, Smith,Peradotto and Pine, JJ.