People v. Guerra-Pena , 847 N.Y.S.2d 886 ( 2007 )

Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered June 3, 2005. The judgment convicted defendant, upon his plea of guilty, of rape in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of rape in the first degree (Penal Law § 130.35 [1]), defendant contends that his attorney became a witness against him and thus that he was denied effective assistance of counsel. We reject that contention. Contrary to defendant’s contention, defense counsel did not take a position adverse to defendant by his comments concerning the physical appearance of an item that might have been offered in evidence had a trial been held and defendant’s lack of cooperation in preparing a defense, nor did defense counsel’s comments contribute to any rulings against defendant (see generally People v Wilmet, 9 AD3d 884 [2004], lv denied 3 NY3d 683 [2004]; People v Cook, 295 AD2d 888 [2002], lv denied 99 NY2d 534 [2002]). Present—Hurlbutt, J.P., Martoche, Smith, Peradotto and Pine, JJ.