People v. Ortiz

• Decision Date: 24 March 2022
• Docket Number: 112862
• Citation: 203 A.D.3d 1436,165 N.Y.S.3d 159
• Parties: The PEOPLE of the State of New York, Respondent, v. Eyzaiya ORTIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1436
165 N.Y.S.3d 159

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

112862

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

Calendar Date: February 9, 2022
Decided and Entered: March 24, 2022

Law Offices of Michael Pollok, PLLC, Red Hook (Michael S. Pollok of counsel), for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Colangelo and Fisher, JJ.

MEMORANDUM AND ORDER

Clark, J.

165 N.Y.S.3d 160

Appeal from a judgment of the County Court of Ulster County (Rounds, J.), rendered May 26, 2021, convicting defendant upon his plea of guilty of the crime of rape in the third degree.

In February 2021, pursuant to a plea agreement, defendant waived indictment and pleaded guilty to a superior court information charging him with rape in the third degree, a charge that stemmed from the allegation that he, being 22 years old, engaged in sexual intercourse with a female (hereinafter the victim) shortly before her seventeenth birthday. The plea also satisfied a charge that involved allegations of a nonconsensual incident that occurred when the victim was 17 years old – allegations that defendant denied. Under the terms of the agreement, defendant was promised a sentencing cap of 2½ years in prison plus 10 years of postrelease supervision, with a floor of six months in jail and 10 years of probation, and advised that he would be required to register as a sex offender irrespective of the sentence ultimately imposed. He was also required to waive his right to appeal.

At an appearance originally scheduled for sentencing and a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]), County Court notified defendant that, in addition to the presentence report (hereinafter PSR) prepared for the instant conviction, it had received a victim impact statement under separate cover accompanied by a request from the victim and a recommendation from the Ulster County Probation Department to except the statement from disclosure so that it could not be viewed by defendant (see CPL 390.50[2][a] ). The court indicated that it was inclined to grant the request but would make its final determination at sentencing, which was adjourned so that the court could consider the sentencing materials submitted to it by both parties. Defendant filed written opposition to the victim's request thereafter.

At the next appearance, County Court advised the parties that it found the PSR prepared for the instant conviction to be insufficient for it to understand defendant's prior criminal history and that it had therefore requested and received from the Probation Department unrelated PSRs prepared in conjunction with defendant's two prior youthful offender adjudications.¹ The court again adjourned sentencing, giving defense counsel the opportunity to review those PSRs. The court also indicated that it was still not yet ruling on the victim's request to except her statement from disclosure.

Sentencing ultimately took place at the next appearance. When defendant again objected to the nondisclosure of the victim impact statement, County Court stated that it recalled that it had in fact already granted the victim's request. The court went on to sentence defendant at the promised sentencing cap, making clear that it had relied upon the victim's confidential statement and the two youthful offender PSRs in fashioning its sentence,

165 N.Y.S.3d 161

over defendant's continuing objections.² Defendant appeals.

Defendant's appellate arguments all involve his sentence. Initially, under well-settled law, defendant's challenge to the severity of the sentence is precluded by his waiver of the right to appeal, the voluntariness of which is not challenged (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Next, defendant argues that County Court's decision to withhold the victim's statement violated CPL 380.50(2)(c) and 390.50(2)(a) and his due process rights, and that the court was without authority under either CPL 720.35(2) or 390.50(1) to sua sponte obtain, unseal and rely upon his unrelated youthful offender PSRs for sentencing, as opposed to SORA, purposes. These arguments are addressed "to the procedures utilized in determining his sentence and do[ ] not implicate the legality of the sentence or the power of the court to impose it," and such claims are generally precluded by a valid or unchallenged appeal waiver ( People v. Smith, 119 A.D.3d 1088, 1089, 988 N.Y.S.2d 724 [2014], lv denied 24 N.Y.3d 1084, 1089, 1 N.Y.S.3d 11, 16, 25 N.E.3d 348, 353 [2014]; see People v. Brown, 37 N.Y.3d 940, 941–942, 147 N.Y.S.3d 565, 170 N.E.3d 439 [2021] ; People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ; People v. Medina, 129 A.D.3d 1385, 1386, 12 N.Y.S.3d 352 [2015], lv...