People v. Ort

Appellate Division of the Supreme Court of New York

People v. Ort

286 A.D.2d 827, 730 N.Y.S.2d 576, 2001 N.Y. App. Div. LEXIS 8865

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 27, 2001

StatusPublished

Cited by1 cases

This text of 286 A.D.2d 827 (People v. Ort) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Ort, 286 A.D.2d 827, 730 N.Y.S.2d 576, 2001 N.Y. App. Div. LEXIS 8865 (N.Y. Ct. App. 2001).

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Opinion

—Crew III, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 10, 2000, convicting defendant upon his plea of guilty of the crimes of sodomy in the first degree and sexual abuse in the first degree.

In satisfaction of pending charges consisting of two counts each of sodomy in the first degree and sexual abuse in the first degree, defendant entered a plea of guilty to one count of each crime. Prior to sentencing, he moved to withdraw the plea and, after appointing substitute counsel and conducting a hearing at which defendant and his former counsel testified, County Court denied the motion. Defendant was sentenced to the agreed-upon concurrent determinate prison terms of 13 years on the sodomy charge and seven years on the sexual abuse charge. On this appeal, defendant contends that County Court erred in denying his motion to withdraw the plea. We disagree.

Whether to permit defendant to withdraw the guilty plea was a matter within County Court’s sound discretion and, absent an abuse of that discretion, the court’s determination will not be disturbed (see, People v Bonilla, 285 AD2d 746, 747). Defendant’s claim of mistake and other allegations concerning the knowing and voluntary nature of his plea, which are contrary to his plea allocution and were contradicted by the testimony of the attorney who represented defendant during the period prior to and including the plea, created a question of credibility for County Court to resolve (see, People v Torra, 191 AD2d 738, 739, lv denied 81 NY2d 1021). In resolving this question, County Court aptly noted that defendant’s testimony, in addition to often being ambiguous, suffered from a “convenient loss of memory and [was] inartfully contrived.” Considering the entire record, there is abundant support for the conclusion that defendant’s plea was knowing and voluntary and, therefore, there is no basis upon which to disturb County Court’s denial of defendant’s motion to withdraw the plea.

Cardona, P. J., Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.

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—Crew III, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 10, 2000, convicting defendant upon his plea of guilty of the crimes of sodomy in the first degree and sexual abuse in the first degree.

In satisfaction of pending charges consisting of two counts each of sodomy in the first degree and sexual abuse in the first degree, defendant entered a plea of guilty to one count of each crime. Prior to sentencing, he moved to withdraw the plea and, after appointing substitute counsel and conducting a hearing at which defendant and his former counsel testified, County Court denied the motion. Defendant was sentenced to the agreed-upon concurrent determinate prison terms of 13 years on the sodomy charge and seven years on the sexual abuse charge. On this appeal, defendant contends that County Court erred in denying his motion to withdraw the plea. We disagree.

Whether to permit defendant to withdraw the guilty plea was a matter within County Court’s sound discretion and, absent an abuse of that discretion, the court’s determination will not be disturbed (see, People v Bonilla, 285 AD2d 746, 747). Defendant’s claim of mistake and other allegations concerning the knowing and voluntary nature of his plea, which are contrary to his plea allocution and were contradicted by the testimony of the attorney who represented defendant during the period prior to and including the plea, created a question of credibility for County Court to resolve (see, People v Torra, 191 AD2d 738, 739, lv denied 81 NY2d 1021). In resolving this question, County Court aptly noted that defendant’s testimony, in addition to often being ambiguous, suffered from a “convenient loss of memory and [was] inartfully contrived.” Considering the entire record, there is abundant support for the conclusion that defendant’s plea was knowing and voluntary and, therefore, there is no basis upon which to disturb County Court’s denial of defendant’s motion to withdraw the plea.

Cardona, P. J., Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.

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Bluebook (online)

286 A.D.2d 827, 730 N.Y.S.2d 576, 2001 N.Y. App. Div. LEXIS 8865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ort-nyappdiv-2001.

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