| People v Ortega |
| 2010 NY Slip Op 00777 [70 AD3d 416] |
| February 4, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Ortega, Appellant. |
—[*1] Anthony Ortega, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered April 24,2006, convicting defendant, upon his plea of guilty, of rape in the first degree, criminal contemptin the first degree, and two counts of criminal sexual act in the first degree, and sentencing himto an aggregate term of 12 years, and order, same court and Justice, entered on or about April 28,2008, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimouslyaffirmed.
The record, including the submissions on defendant's CPL 440.10 motion, establishes thatdefendant's plea was knowing, intelligent and voluntary, and that it was not the product ofineffective assistance of counsel (see People v Ford, 86 NY2d 397, 404 [1995]). Counselsecured a favorable plea during a jury trial, at the end of the victim's direct examination.
With regard to the CPL 440.10 motion, while there may have been factual disputes aboutconversations trial counsel Gary Sunden, Esq., had with defendant and other persons, thesedisputes were immaterial. In his affidavit, defendant asserted that Sunden told him thatintoxication was "not an applicable defense" to the charges against him, that "the defense ofintoxication was not avail[able] to [him]," and that he "could not avail [himself] of the defense."These statements by counsel are not the same as a statement that intoxication is never a defenseor that it is not a defense as a matter of law. Moreover, none of the individuals who submittedaffidavits in support of defendant's motion asserted that Sunden had erroneously stated thatintoxication was not a defense as a matter of law. Rather, two of the individuals, one of whom isan attorney, stated only that Sunden had said that the defense of intoxication "was not availablein this case." Similarly, the third individual, defendant's uncle, asserted that he asked Sunden ifdefendant's claim that he had been "high" on drugs and alcohol could be part of the defense, andSunden responded that "that was no defense and that [defendant] was responsible for his [*2]actions." For his part, Sunden did not deny discussing intoxicationwith defendant. Rather, he asserted, inter alia, that defendant never said that he was sointoxicated that he did not know what was going on, and explained at length the factual basis forhis judgment that a defense of intoxication was not viable. Thus, defendant's assertions insupport of his CPL 440.10 motion did not raise a material issue of fact as to the effectiveness ofcounsel, and the motion was properly denied without a hearing (see CPL 440.30 [4] [a]).
Defendant's claim that a different attorney, who represented him at the early stages of thecase, also rendered ineffective assistance with regard to a possible intoxication defense isunreviewable because it was not included in defendant's CPL 440.10 motion and it involvesmatters outside the record (see People v Love, 57 NY2d 998 [1982]). On the existingrecord, to the extent it permits review, we reject the claim.
Defendant's remaining challenges to the voluntariness of his plea are unpreserved (seePeople v Lopez, 71 NY2d 662, 666 [1988]), and we decline to review them in the interest ofjustice. As an alternative holding, we reject each of them on the merits. The court's explanationof the rights defendant was waiving by pleading guilty was sufficient (see People vHarris, 61 NY2d 9 [1983]), particularly in light of the circumstance that defendant pleadedguilty in the midst of trial testimony and was well aware that he was giving up his right tolitigate further his guilt or innocence. The court was not obligated to inquire about a possibleintoxication defense, because defendant said nothing about intoxication in his plea allocutionitself, regardless of what he may have said on other occasions (see e.g. People v Fiallo, 6 AD3d 176, 177[2004], lv denied 3 NY3d 640 [2004]). Finally, since the court explicitly told defendantit intended to impose a five-year period of postrelease supervision (PRS), which the courtimposed at sentencing, the requirements of People v Catu (4 NY3d 242 [2005]) were satisfied, and the courthad no reason to inform defendant that it could have imposed a PRS term as low as2½ years, but did not see fit to do so.
When taken together, defendant's written and oral waivers establish that he made a validwaiver of his right to appeal (see Peoplev Ramos, 7 NY3d 737 [2006]). That waiver forecloses review of defendant's remainingclaims. As an alternative holding, we perceive no basis for reducing the sentence, and we finddefendant's pro se claims without merit. Concur—Gonzalez, P.J., Friedman, McGuire,DeGrasse and Manzanet-Daniels, JJ.