Opinion
1 A.D.3d 705 766 N.Y.S.2d 636 The People of the State of New York, Respondent v. Richard J. Barclay, Appellant Supreme Court of New York, Third Department November 13, 2003.
OPINION
Spain, J.
Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered December 3, 2001, convicting defendant upon his plea of guilty of the crime of criminal mischief in the fourth degree.
Defendant was indicted for criminal mischief in the third degree, a felony, after kicking a van belonging to a local television station causing approximately $1,600 in damage to the vehicle. Pursuant to a negotiated plea agreement, he pleaded guilty to criminal mischief in the fourth degree and was sentenced to serve three years' probation and pay restitution. Defendant now appeals, and we affirm.
Defendant's challenge to the voluntariness of his plea is not preserved given his failure to move to withdraw his plea or to vacate the judgment of conviction (see People v Angus, 303 A.D.2d 829, 829 [2003], lv denied 100 N.Y.2d 536 [2003]; People v Camp, 302 A.D.2d 629, 630 [2003], lv denied 100 N.Y.2d 593 [2003]). We nevertheless exercise our discretion to address the issue and reject defendant's contention that County Court abused its discretion in accepting his plea without first holding a CPL article 730 hearing to determine his competency despite his history of mental illness (see People v Dover, 227 A.D.2d 804, 805 [1996], lv denied 88 N.Y.2d 984 [1996]). A defendant is presumed competent and a trial court is not required to order an examination unless it has reason to believe that the defendant is an incapacitated person' " (People v Stonis, 246 A.D.2d 911, 911 [1998], lv denied 92 N.Y.2d 883 [1998], quoting CPL 730.10 [1] and 730.30 [1]), i.e., that he or she as a result of mental disease or defect lacks capacity to understand the proceedings against him [or her] or to assist in his [or her] own defense" (CPL 730.10 [1]; see People v Stonis, supra at 912). A trial court is not required to hold a CPL article 730 hearing simply because a defendant has a history of mental illness (see People v Morgan, 87 N.Y.2d 878, 879-880 [1995]; People v Stonis, supra at 912), and such a history does not necessarily render a defendant incompetent to enter a knowing and voluntary plea (see People v Greene, 274 A.D.2d 842, 843 [2000], lv denied 95 N.Y.2d 963 [2000]).
Here, County Court conducted a lengthy colloquy during which defendant not only answered the court's questions affirming his understanding of his rights, the terms of the plea agreement and the nature of the proceedings, but he also affirmatively asked questions for clarification. There is nothing in this record indicating that defendant lacked the capacity to enter a knowing, intelligent and voluntary plea and, accordingly, we find no abuse of discretion in the court's acceptance of his plea without holding a competency hearing (see id. at 843; People v Stonis, supra at 912).
We also are unpersuaded by defendant's argument that defense counsel's failure to request a CPL article 730 hearing deprived him of the effective assistance of counsel. Defendant was charged with a felony and facing a maximum of four years in state prison (see Penal Law § 70.00 [2] [e]; [4]; § 145.05), and defense counsel made pretrial motions and successfully negotiated a plea agreement whereby defendant avoided a felony conviction and was sentenced to probation without jail time. As discussed, defendant exhibited his understanding of his rights and expressed his satisfaction with defense counsel's representation on the record. Under these circumstances, we cannot say that defense counsel's recommendation to defendant that he plead guilty was other than a sound defense strategy' " (People v Perrotti, 257 A.D.2d 776, 778 [1999], lv denied 93 N.Y.2d 901 [1999], quoting People v Johnson, 91 A.D.2d 782, 783 [1982]) and hold, therefore, that defendant was not deprived of meaningful representation (see People v Perrotti, supra at 778;see also People v D'Adamo, 293 A.D.2d 869, 872 [2002], lv denied 98 N.Y.2d 730 [2002]).
Mercure, J.P., Carpinello, Mugglin and Lahtinen, JJ., concur.
Ordered that the judgment is affirmed.