People v. Ortega
| Decision Date | 04 February 2010 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Anthony ORTEGA, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
70 A.D.3d 416
896 N.Y.S.2d 308
2010 N.Y. Slip Op. 00777
The PEOPLE of the State of New York, Respondent,
v.
Anthony ORTEGA, Defendant–Appellant.
Supreme Court, Appellate Division, First Department, New York.
Feb. 4, 2010.
[896 N.Y.S.2d 309]
Robert S. Dean, Center for Appellate Litigation, New York (Peter Theis of counsel), for appellant.Anthony Ortega, appellant pro se.Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), for respondent.GONZALEZ, P.J., FRIEDMAN, McGUIRE, DeGRASSE, MANZANET–DANIELS, JJ.
[70 A.D.3d 416] 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 contempt in the first degree, and two counts of criminal sexual act in the first degree, and sentencing him to 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, unanimously affirmed.
The record, including the submissions on defendant's CPL 440.10 motion, establishes that defendant's plea was knowing, intelligent and voluntary, and that it was not the product of ineffective assistance of counsel ( see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Counsel secured 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 about conversations trial counsel Gary Sunden, Esq., had with defendant and other persons, these disputes were immaterial. In his affidavit, defendant asserted that Sunden told him that intoxication was “not an applicable defense” to the charges against him, that “the defense of [70 A.D.3d 417] intoxication 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
[896 N.Y.S.2d 310]
that intoxication is never a defense or that it is not a defense as a matter of law. Moreover, none of the individuals who submitted affidavits in support of defendant's motion asserted that Sunden had erroneously stated that intoxication was not a defense as a matter of law. Rather, two of the individuals, one of whom is an attorney, stated only that Sunden had said that the defense of intoxication “was not available in this case.” Similarly, the third individual, defendant's uncle, asserted that he...
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...plea voluntary where the defendant did not make any assertions of intoxication during the plea colloquy]; cf. People v. Ortega, 70 A.D.3d 416, 417, 896 N.Y.S.2d 308 [1st Dept. 2010], lv denied 15 N.Y.3d 808, 908 N.Y.S.2d 168, 934 N.E.2d 902 [2010] [the court was not obligated to inquire abo......
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