People v. Ortiz

Decision Date16 April 2015
Docket Number105500.
PartiesThe PEOPLE of the State of New York, Respondent, v. David ORTIZ, Appellant.
CourtNew York Supreme Court — Appellate Division

127 A.D.3d 1416
7 N.Y.S.3d 645
2015 N.Y. Slip Op. 03200

The PEOPLE of the State of New York, Respondent
v.
David ORTIZ, Appellant.

105500.

Supreme Court, Appellate Division, Third Department, New York.

April 16, 2015.


7 N.Y.S.3d 646

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

CLARK, J.

127 A.D.3d 1416

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August 29, 2012 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

In December 2011, defendant was a passenger in a vehicle stopped by the police for a traffic infraction. During a search of the vehicle, a state trooper discovered a gun and ammunition. Indicted on charges of criminal possession of a weapon in the second degree and criminal possession of stolen property in the fourth degree, defendant moved to suppress the evidence, a motion that Supreme Court denied following a hearing. Subsequently, in exchange for a promised determinate prison sentence of seven years followed by five years of postrelease supervision, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree and waived his right to appeal on the record, both verbally and in writing. Defendant now appeals.

Initially, we reject defendant's claim that his appeal waiver was invalid. During the plea colloquy, Supreme Court adequately explained the nature of the rights that defendant was waiving and that the right to appeal is separate and distinct from the rights automatically forfeited upon a plea of guilty (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Defendant orally confirmed that he understood the rights that he was relinquishing and that those rights were separate and distinct from the rights forfeited as a result of his guilty plea (cf. People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Defendant also signed a written waiver of appeal in open court that both mirrored Supreme Court's colloquy and indicated that defendant had been given sufficient time to discuss the waiver with counsel. Therefore, contrary to defendant's contentions on appeal, the court “carefully

explained the appeal waiver and distinguished it from the other rights that defendant was forgoing as a consequence of his guilty plea, established that defense counsel had discussed it with him ... and did not mislead him as to the ... scope of the appeal waiver” (

People v. Wolz, 112 A.D.3d 1150, 1152, 976 N.Y.S.2d 723 [2013], lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014] ; see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, ...

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8 cases
  • People v. Mahon
    • United States
    • New York Supreme Court Appellate Division
    • March 9, 2017
    ...the absence of a postallocution motion1 and the narrow exception to the preservation requirement is inapplicable (see People v. Ortiz, 127 A.D.3d 1416, 1417, 7 N.Y.S.3d 645 [2015], lv. denied 26 N.Y.3d 1010, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015] ). Defendant's challenges to the sufficiency ......
  • People v. Pope
    • United States
    • New York Supreme Court Appellate Division
    • June 25, 2015
    ...to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Ortiz, 127 A.D.3d 1416, 1417, 7 N.Y.S.3d 645 [2015] ). Accordingly, we affirm the judgment of conviction.McCARTHY, J.P., and CLARK, J., concur.DEVINE, J. (concurri......
  • People v. Dorfeuille
    • United States
    • New York Supreme Court Appellate Division
    • April 16, 2015
    ...on the gravity of the crimes and the violent and intentional nature of the concerted attack by defendant and his codefendants against 7 N.Y.S.3d 645this unarmed victim. The court also specifically noted defendant's repeated failure to accept responsibility for the crimes or admit that he ha......
  • People v. Daniels
    • United States
    • New York Supreme Court Appellate Division
    • May 19, 2016
    ...counsel had informed him of its consequences (see People v. Sawyer, 135 A.D.3d 1164, 1165, 22 N.Y.S.3d 711 [2016] ; People v. Ortiz, 127 A.D.3d 1416, 1416–1417, 7 N.Y.S.3d 645 [2015], lv. denied 26 N.Y.3d 1010, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015] ). Accordingly, defendant's challenge to t......
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