People v. Ortiz

• Decision Date: 29 November 2011
• Parties: The PEOPLE, etc., respondent, v. Travis J. ORTIZ, appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08783
89 A.D.3d 1113
933 N.Y.S.2d 609

The PEOPLE, etc., respondent,
v.
Travis J. ORTIZ, appellant.

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

Nov. 29, 2011.

Maureen Galvin Dwyer, Northport, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered November 4, 2010, convicting him of robbery in the first degree and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant challenges the factual sufficiency of his plea allocution. Contrary to the People's contention, the defendant's waiver of his right to appeal was not valid ( see People v. Dewberry, 223 A.D.2d 555, 636 N.Y.S.2d 1014), and therefore, the purported waiver does not bar review of the defendant's claim. Nevertheless, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for *610 appellate review ( see CPL 470.05[2]; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160), and the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crimes, or call into question the voluntariness of his plea ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see People v. Young, 88 A.D.3d 918, 918, 931 N.Y.S.2d 235). In any event, the facts admitted by the defendant during his plea allocution were sufficient to support his plea of guilty ( see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797).

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made also is unpreserved for appellate review ( see CPL 470.05[2]; People v. Gantt, 85 A.D.3d 815, 816, 924 N.Y.S.2d 821). In any event, his plea was knowingly, voluntarily, and intelligently made ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646).

Since the defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed, he has no basis to now complain that the sentence imposed was excessive ( see People v. Kazepis, 101 A.D.2d 816, 817, 475 N.Y.S.2d 351).

DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN...