| People v Ortiz |
| 2010 NY Slip Op 00015 [69 AD3d 966] |
| January 7, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Edwin Ortiz,Also Known as Jose Velez, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered July 18, 2007, convicting defendant upon his pleas of guilty of the crimes of criminalpossession of a weapon in the second degree (two counts), assault in the second degree,attempted robbery in the first degree and escape in the first degree.
On August 10, 2006, in satisfaction of a 17-count indictment, defendant pleaded guilty totwo counts of criminal possession of a weapon in the second degree and one count each ofassault in the second degree and attempted robbery in the first degree. Under the terms of theplea agreement, he waived his right to appeal and was to be sentenced as a persistent violentfelony offender to an aggregate prison term of 15 years to life. The following day, defendantentered a plea of guilty to escape in the first degree in satisfaction of a separate indictment,waived his right to appeal and agreed to be sentenced as a second felony offender to aconsecutive term of 3½ to 7 years in prison. Prior to sentencing, defendant was assignednew counsel and moved to withdraw his pleas on the ground that, among other things, they werenot knowingly entered due to his attorney's uncertainty as to whether he would be classified as apersistent violent felony offender. County Court denied the motion without a hearing, findingthat nothing in the record called into question the voluntariness of defendant's pleas or his [*2]innocence. Following a number of hearings regarding defendant'sstatus, the People indicated an inability to demonstrate the requisite criteria for treatingdefendant as a persistent violent felony offender. Thereafter, defendant was adjudicated to be apersistent felony offender and sentenced in accordance with the plea bargain.
Defendant appeals, contending that his guilty pleas and waivers of appeal were not knowing,intelligent and voluntary because they were made at a time when both sides and County Courtwere under the misapprehension that he was a persistent violent felony offender. Whiledefendant's challenge to the voluntariness of his pleas survives the waivers of appeal and waspreserved by his motion to withdraw the pleas (see People v Fitzgerald, 56 AD3d 811, 812 [2008]; People vPace, 284 AD2d 806, 807 [2001], lv denied 97 NY2d 686 [2001]), we find it to beunpersuasive. Contrary to defendant's contention, the universal misunderstanding that he couldbe sentenced as a persistent violent felony offender is not dispositive as to whether his pleas andappeal waivers were knowingly and voluntarily entered (see People v Garcia, 92 NY2d869, 870 [1998]; People v Johnson,24 AD3d 1259, 1259 [2005], lv denied 6 NY3d 814 [2006]; People vJackson, 278 AD2d 875 [2000], lv denied 96 NY2d 759 [2001]; see also People v Smith, 49 AD3d1032, 1033 [2008], lv denied 10 NY3d 939 [2008]). Rather, various factors must beconsidered, " 'including the nature and terms of the agreement, the reasonableness of the bargain,and the age and experience of the accused' " (People v Garcia, 92 NY2d at 870, quotingPeople v Hidalgo, 91 NY2d 733, 736 [1998]; see People v Johnson, 24 AD3d at1259; People v Jackson, 278 AD2d at 875).
Here, the 43-year-old defendant had extensive experience in the criminal justice system andhas pleaded guilty to several felonies in the past. The guilty pleas at issue here were insatisfaction of numerous other crimes for which he received no additional prison time. A reviewof such plea allocutions discloses that defendant, who was represented by counsel, was fullyinformed of the rights he was waiving, understood the nature and consequences of his pleas, wasacting of his own free will without any coercion or threats, had no mental health problems andhad ample time to confer with counsel regarding the pleas and was satisfied with counsel'sservices. Defendant provided affirmative responses to County Court's factual recitation of thecrimes to which he was pleading and at no time during the plea allocutions did he cast any doubton his culpability. He also executed a written appeal waiver, in open court, that advised him ofhis right to appeal, explained the appellate process and reflected that his attorney had counseledhim on the matter. Notably, there is no indication or allegation in the record that, had he knownthat he would have been sentenced as a persistent felony offender rather than a persistent violentfelony offender, he would not have pleaded guilty. Moreover, despite the misunderstandingduring the August 10, 2006 plea that defendant could be sentenced as a persistent violent felonyoffender, he was ultimately sentenced to the agreed-upon prison term of 15 years to life, asentence that is the minimum for a persistent felony offender (see Penal Law §70.00 [2] [a]; [3] [a]; § 70.10 [2]; cf. People v Williams, 300 AD2d 825, 826-827[2002]). Given that there are no other indicia that the guilty pleas were not knowingly,voluntarily and intelligently entered, we cannot conclude that the inaccurate informationconcerning defendant's sentencing status influenced his decision to plead guilty (see People vGarcia, 92 NY2d at 870; People vRobles, 5 AD3d 180, 181 [2004], lv denied 2 NY3d 805 [2004]; People vBurnett, 221 AD2d 355 [1995], lv denied 87 NY2d 920 [1996]).
Lahtinen, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.