Opinion
2016-06730 Ind. No. 15-00670
08-21-2019
The PEOPLE, etc., Respondent, v. Gerald HARDEN, Appellant.
Christopher J. Cardinale, Walden, NY, for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss and Joseph Leathem Leahy of counsel), for respondent.
Christopher J. Cardinale, Walden, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss and Joseph Leathem Leahy of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed. The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw the plea (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ; People v. Canole, 123 A.D.3d 940, 996 N.Y.S.2d 922 ). In any event, the plea was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170 ). Although the defendant testified at the plea hearing that he was taking a certain prescription medication, there is no basis in the record to support his contention that he lacked the capacity to understand the proceedings against him or that he was unable to assist in his defense (see CPL 730.30[1] ; People v. Morris, 147 A.D.3d 1083, 1084, 48 N.Y.S.3d 425 ; People v. Kelly, 121 A.D.3d 713, 993 N.Y.S.2d 169 ; People v. M'Lady, 59 A.D.3d 568, 873 N.Y.S.2d 331 ; People v. Parker, 191 A.D.2d 717, 595 N.Y.S.2d 519 ). To the contrary, the defendant's responses at the plea and sentencing proceedings were appropriate, and did not indicate that he was incapacitated (see People v. Morris, 147 A.D.3d at 1084, 48 N.Y.S.3d 425 ; People v. Thomas, 139 A.D.3d 986, 987, 31 N.Y.S.3d 591 ; People v. Narbonne, 131 A.D.3d at 627, 14 N.Y.S.3d 917 ; People v. M'Lady, 59 A.D.3d at 568, 873 N.Y.S.2d 331 ; People v. Pryor, 11 A.D.3d 565, 566, 782 N.Y.S.2d 803 ).
By pleading guilty, the defendant forfeited his contention that his motion to dismiss the indictment should have been granted on the ground that he did not earn income as an employee (see generally People v. Price, 150 A.D.3d 1153, 1154, 52 N.Y.S.3d 649 ; People v. Manragh, 150 A.D.3d 762, 51 N.Y.S.3d 431, affd 32 N.Y.3d 1101, 90 N.Y.S.3d 623, 114 N.E.3d 1076 ).
LEVENTHAL, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.