People v. Ortiz

• Decision Date: 05 September 1997
• Citation: 663 N.Y.S.2d 496,174 Misc.2d 222
• Parties: , 1997 N.Y. Slip Op. 97,545 The PEOPLE of the State of New York, Plaintiff, v. Ricardo ORTIZ, Defendant.
• Court: New York City Court

Page 496

663 N.Y.S.2d 496

174 Misc.2d 222, 1997 N.Y. Slip Op. 97,545

The PEOPLE of the State of New York, Plaintiff, v. Ricardo ORTIZ, Defendant.

Criminal Court of the City of New York Kings County.

Sept. 5, 1997.

Gary Cohen, Brooklyn, for defendant.

Charles J. Hynes, District Attorney, Kings County, Brooklyn (Laurie Opochinsky, of counsel), for plaintiff.

WILLIAM MILLER, Judge.

Defendant moves before sentence pursuant to CPL 220.60(3) to withdraw his plea of guilty to criminal contempt in the second degree on the grounds that the complainant recanted, that he pleaded guilty to secure his release from jail and that he had difficulty understanding the speech of his prior counsel. The People have answered in opposition contending defendant's claims are unsupported by fact or law. Upon consideration of the papers submitted, the transcripts of proceedings held on February 19 and April 3, 1997, the court files of the instant case and a related case (96K072700), and, upon the applicable law, the Court denies defendant's motion to withdraw his plea.

The complaint charges defendant with criminal contempt in the first degree, assault in the third degree, harassment in the second degree and menacing in the third degree. The charges stem from allegations by Janet Ortiz that on January 2, 1997, in violation of an order of protection issued on October 4, 1996 ¹, defendant grabbed her, punched her in the face causing swelling, substantial pain and alarm and threatened to kill her causing her to fear physical injury.

On February 19, 1997, defendant pleaded guilty, in satisfaction of the complaint, to the reduced charge of criminal contempt in the second degree (Penal Law § 215.50[3] ), a class A misdemeanor. Minutes of the proceedings reflect that defendant knowingly, voluntarily and intelligently entered his plea. He was represented by Mona Kavowras, Esq. on behalf of defendant's then counsel, Milton Slaughter, Esq. Defendant acknowledged having previously discussed the case with both attorneys. Defendant wished to plead guilty and agreed to have Ms. Kavowras stand in for Mr. Slaughter. Furthermore, defendant stated that he was, in fact, guilty and was pleading guilty of his own free will.

In his allocution, defendant stated he understood that there was a previous order of protection requiring him to stay away from Janet Ortiz. He admitted he did not stay away from her and that he grabbed her and punched her in violation of that order. Defendant was fully apprised of his rights and the terms of the plea bargain. ² When asked if there was anything he did not understand or if he wished to speak either to Ms. Kavowras or to the Court, defendant responded, "No, Sir."

On April 3, 1997, defendant appeared for sentence with Mr. Slaughter. A pre-sentence report prepared by the Probation Department indicated that defendant "denies his guilt, but accepts his plea" and that "he accepted the plea because he wanted to be released from jail." The report indicated that Janet Ortiz had stated to the investigating probation officer that "the defendant did not harm her in any way and she lied to get him in trouble because he was on probation."

To clarify the matter and avoid any error, this Court inquired of defendant whether he pleaded guilty because he was in fact guilty. Defendant reacknowledged his guilt. Nevertheless, the Court requested the prosecution to contact the complainant to verify her alleged statement to the Department of Probation. The case was adjourned several times for this purpose because the prosecution was unable to locate and speak to the complainant. In the interim, defendant changed his position, indicating that he was not guilty and that he wanted to withdraw his plea. Under these circumstances, the Court assigned present counsel who filed the instant motion on defendant's behalf. The prosecution eventually contacted the complainant and submitted two memoranda and an affirmation to the Court. ³

Defendant's primary contention is that complainant's recantation, i.e., her alleged statement to both the Department of Probation and the District Attorney's Office, that defendant did not strike or assault her, requires withdrawal of the plea--firstly, because the complaint is fraudulent and secondly, because the recantation constitutes newly discovered evidence. Neither this, nor defendant's two other contentions--that he accepted the plea bargain solely to secure his release from jail and that he had difficulty understanding the speech of his prior counsel--are supported by the requisite sworn, factual allegations.

Although the People concede that the complainant recanted that portion of her "testimony" (sic) that an "assault" occurred on February 2, 1997, they point out that the complainant signed an affidavit under penalty of perjury corroborating the original complaint. The People contend that recantation as to an "assault" did not negate that portion of the complaint alleging a violation of the order of protection. Even if defendant did not harm the complainant, his having admittedly grabbed and punched her contrary to the order of protection established a sufficient basis to support defendant's plea. Furthermore, the People point out that the complainant "never denied that an argument between the defendant and herself did take place in the street on that date in violation of a Full Order of Protection issued on October 4, 1996." Thus, it is the People's position that a mere contention that no assault occurred, absent a claim of innocence by defendant, did not provide the Court with a basis to allow defendant's plea to be withdrawn.

Under the foregoing circumstances, the Court concludes in its discretion that withdrawal of the...