Opinion
901 KA 19-02116
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Jason E. CATO, Defendant-Appellant. (Appeal No. 1.)
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from judgments convicting him upon his pleas of guilty during a single plea proceeding of, respectively, three counts and one count of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ). We affirm in both appeals.
Initially, to the extent that the purported waiver of the right to appeal is relevant to any of defendant's contentions, we conclude that he did not validly waive his right to appeal (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Parker , 189 A.D.3d 2065, 2065-2066, 138 N.Y.S.3d 758 [4th Dept. 2020], lv denied 36 N.Y.3d 1122, 146 N.Y.S.3d 191, 229, 169 N.E.3d 549, 587 [2021]).
Defendant contends that his pleas were not voluntarily, knowingly, and intelligently entered because County Court did not ensure that defendant, who reportedly suffers from mental health conditions, was competent to enter the pleas. Defendant failed to preserve his contention for our review inasmuch as he did not move to withdraw the pleas or to vacate the judgments of conviction on that ground (see People v. Russell , 133 A.D.3d 1199, 1199, 20 N.Y.S.3d 760 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016]; People v. Williams , 124 A.D.3d 1285, 1285, 999 N.Y.S.2d 642 [4th Dept. 2015], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] ). This case does not fall within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see Russell , 133 A.D.3d at 1199, 20 N.Y.S.3d 760 ; Williams , 124 A.D.3d at 1285-1286, 999 N.Y.S.2d 642 ). In any event, defendant's contention lacks merit. " ‘A history of prior mental illness or treatment does not itself call into question [a] defendant's competence’ " and, here, "[t]here is no indication in the record that defendant was unable to understand the proceedings or that he was mentally incompetent at the time he entered his guilty plea[s]" ( People v. Williams , 35 A.D.3d 1273, 1275, 825 N.Y.S.2d 862 [4th Dept. 2006], lv denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007] [internal quotation marks omitted]; see Williams , 124 A.D.3d at 1286, 999 N.Y.S.2d 642 ). Indeed, the court "sufficiently inquired about defendant's mental health issues and medications and ensured that he was lucid and understood the proceedings" ( Russell , 133 A.D.3d at 1199-1200, 20 N.Y.S.3d 760 ), and "[t]here was not the slightest indication that defendant was uninformed, confused or incompetent" at the time he entered the pleas ( People v. Alexander , 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802 [2002] ; see People v. Wilson , 117 A.D.3d 1476, 1477, 984 N.Y.S.2d 725 [4th Dept. 2014] ).
To the extent that defendant's further contention that he was denied effective assistance of counsel survives his pleas of guilty (see People v. Corron , 180 A.D.3d 1330, 1331, 115 N.Y.S.3d 729 [4th Dept. 2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 [2020] ; People v. Robinson , 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814 [4th Dept. 2007], lv denied 9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [2007] ), we conclude that it is without merit inasmuch as the record establishes that defendant received "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Defendant also contends that his attorney took positions adverse to him during the sentencing proceeding, and that the court thus erred in failing to sua sponte appoint new counsel. That contention lacks merit inasmuch as defendant's attorney did not take a position adverse to defendant (see People v. Tracy , 125 A.D.3d 1517, 1518, 3 N.Y.S.3d 256 [4th Dept. 2015], lv denied 27 N.Y.3d 1008, 38 N.Y.S.3d 117, 59 N.E.3d 1229 [2016] ; see also People v. Washington , 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [2015] ; People v. Mishoe , 162 A.D.3d 529, 530, 79 N.Y.S.3d 29 [1st Dept. 2018], lv denied 32 N.Y.3d 1113, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018] ).
We have considered defendant's remaining contentions raised in these appeals and conclude that none warrants reversal or modification of the judgments.