| People v Orsini |
| 2008 NY Slip Op 03804 [50 AD3d 1541] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Felipe Orsini,Jr., Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedMay 3, 2007. The judgment convicted defendant, upon his plea of guilty, of rape in the seconddegree and criminal sexual act in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofrape in the second degree (Penal Law § 130.30 [1]) and criminal sexual act in the seconddegree (§ 130.45 [1]). We reject the contention of defendant that he was denied effectiveassistance of counsel based upon, inter alia, defense counsel's failure to challenge thevoluntariness of his statement to the police and the validity of his consent to search his residence.Defendant's omnibus motion sought suppression of defendant's statement, and the failure tochallenge the search of defendant's residence is of no moment because it is undisputed thatdefendant's girlfriend, who resided with defendant, validly consented to the search (seePeople v Rivera, 206 AD2d 832 [1994]). Thus, a challenge to the validity of the consent ofdefendant to search his residence "was not warranted by the facts of this case," and the failure toassert such a challenge necessarily does not constitute ineffective assistance of counsel (People v Howard, 37 AD3d 494,495 [2007], lv denied 9 NY3d 866 [2007]). The record establishes that defense counselotherwise provided meaningful representation (see generally People v Baldi, 54 NY2d137, 147 [1981]). Finally, the bargained-for sentence is not unduly harsh or severe.Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Gorski, JJ.