Opinion
2012-03-15
The PEOPLE of the State of New York, Respondent, v. Colleen M. SHIELS, Appellant.
Michael E. Trosset, Cooperstown, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Michael E. Trosset, Cooperstown, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: MERCURE, Acting P.J., LAHTINEN, SPAIN, STEIN and McCARTHY, JJ.
SPAIN, J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered March 2, 2010, convicting defendant upon her plea of guilty of the crime of attempted assault in the first degree.
Defendant was charged with attempted murder in the second degree and assault in the first degree, stemming from the stabbing of her ex-husband in the chest. Pursuant to a plea agreement, defendant pleaded guilty to attempted assault in the first degree in full satisfaction of the charges. County Court thereafter sentenced defendant to the agreed-upon prison term of 13 1/2 years, to be followed by five years of postrelease supervision. Defendant appeals.
We affirm. Defendant's contention that she was denied the effective assistance of counsel is not preserved for our review in light of her failure to move to withdraw her plea or vacate the judgment of conviction ( see People v. Gomez, 72 A.D.3d 1337, 1338, 899 N.Y.S.2d 435 [2010]; *896 People v. Gorrell, 63 A.D.3d 1381, 1381, 882 N.Y.S.2d 324 [2009], lv. denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ). In any event, were we to review this claim, we would find it to be unavailing. Given the lack of anything in the limited record before us to indicate that counsel should have had doubts concerning defendant's ability to enter a knowing and voluntary plea, the fact that counsel did not request a CPL article 730 competency hearing did not deprive defendant of the effective assistance of counsel ( see People v. Gomez, 72 A.D.3d at 1338, 899 N.Y.S.2d 435; People v. Jenks, 69 A.D.3d 1120, 1122, 891 N.Y.S.2d 766 [2010], lv. denied 14 N.Y.3d 841, 901 N.Y.S.2d 148, 927 N.E.2d 569 [2010] ), despite evidence in the record that defendant has a history of mental illness ( see People v. Lafoe, 75 A.D.3d 663, 663, 905 N.Y.S.2d 679 [2010], lv. denied 15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010]; People v. Barclay, 1 A.D.3d 705, 706, 766 N.Y.S.2d 636 [2003], lv. denied 1 N.Y.3d 567, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003] ). Moreover, defendant's assertions that counsel failed to investigate her mental health history and potential defenses involve matters outside the record and are more properly the subject of a CPL article 440 motion ( see People v. Pendelton, 81 A.D.3d 1037, 1039, 916 N.Y.S.2d 297 [2011], lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011]; People v. Watson, 61 A.D.3d 1217, 1218, 876 N.Y.S.2d 786 [2009], lv. denied 12 N.Y.3d 930, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009] ).
ORDERED that the judgment is affirmed.