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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANNY GUERRA-PENA, Appellant.

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), 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, lv denied 3 NY3d 683; People v Cook, 295 AD2d 888, lv denied 99 NY2d 534).

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PEOPLE v. GUERRA-PENA
(Dec 21, 2007)