People v. Orengo

—Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Gorges, J.), entered June 18, 1998, which denied his motion pursuant to CPL 440.20 to vacate a sentence imposing an Indeterminate term of imprisonment of 20 years to life, upon a judgment of the same court, rendered January 6, 1992, convicting him of murder in the second degree, upon a jury verdict. Ordered that the order is affirmed. At the time of sentencing, the People alleged that the defendant had a number of previous convictions. However, defense counsel asserted that the defendant had no previous convictions. The defendant himself told the court, “That’s not my record. That’s my cousin. He got the same name as me. That’s not me.” On appeal, the People concede that the convictions which the prosecutor attributed to the defendant at sentencing were, in fact, not his. Thus, the defendant argues that his sentence should be vacated because it was based upon incorrect data. We disagree. Prior to imposing sentence, the Supreme Court stated as fol [345] lows: “[A]fter due deliberation, and having read the probation report, after listening to the Assistant District Attorney, considering the nature of the crime, and the defendant’s prior record, and I’ve taken into consideration that this may not be his record, all right, Fm going to base it upon, this sentence, based upon the crime that was charged, and the verdict of the jury on this case, the court gives the following judgments of sentence. * * * I recall this case very vividly * * * [T]his is not a case of an intoxicated person, who, by mistake, shoots somebody. This is a case where someone intentionally goes after another person. And, even after going after the person, the person walks back out; and then he goes after him a second time” (emphasis added). Contrary to the opinion expressed by our dissenting colleagues, the Supreme Court’s remarks demonstrate that the sentence which it chose to impose was based solely upon the crime and its circumstances, and not upon the incorrect information concerning the defendant’s prior criminal record. Indeed, the Supreme Court specifically stated that the sentence was based upon the crime charged and the verdict of the jury. Even assuming that the Supreme Court’s remarks may be deemed ambiguous concerning the import of defendant’s “prior record,” any ambiguity was dispelled when the court denied his subsequent motion pursuant to CPL 440.20, and reiterated that it had “disregarded the District Attorney’s comments [at sentencing],” and that “the sentence was based on the facts of the crime before the court and not on any prior alleged criminal history” (emphasis added). Although the defendant’s attorney could have been more vigilant in exploring the issue of the defendant’s record, his conduct in this regard was not tantamount to ineffective assistance of counsel (see, People v Rivera, 71 NY2d 705). In any event, as already noted, the inaccurate record was disregarded by the Supreme Court. Therefore, the Supreme Court properly denied the defendant’s motion to vacate his sentence (cf., People v Naranjo, 89 NY2d 1047). Santucci, J. P., H. Miller and Schmidt, JJ., concur.