Opinion
KA 01-00655
June 13, 2003.
Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered November 17, 2000, convicting defendant upon his plea of guilty of attempted kidnapping in the second degree (two counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MARCY H. HAGEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
The record establishes that defendant voluntarily, knowingly and intelligently waived his right to appeal (see People Hidalgo, 91 N.Y.2d 733, 736; People v. DeJesus, 248 A.D.2d 1023, lv denied 92 N.Y.2d 878). That waiver encompasses defendant's contention that the sentences imposed on the convictions in both appeals are unduly harsh and severe ( see People v. Lococo, 92 N.Y.2d 825, 827). The further contention of defendant that the guilty pleas were involuntarily entered survives his waivers of the right to appeal, but defendant failed to preserve that contention for our review by moving to withdraw the pleas or to vacate the judgments of conviction ( see People v. Faison, 270 A.D.2d 717; DeJesus, 248 A.D.2d 1023). Defendant contends that Supreme Court erred in denying defense counsel's request to obtain expert psychiatric services pursuant to County Law 722-c with respect to a possible insanity defense. Even assuming, arguendo, that defendant's contention survives the guilty pleas ( see generally People v. Di Donato, 87 N.Y.2d 992, 993), we conclude that it lacks merit ( see People v. Carpenter, 240 A.D.2d 863, 864, lv denied 90 N.Y.2d 902). Finally, although issues relating to defendant's competency survive both the waivers of the right to appeal and the guilty pleas themselves ( see People v. Callahan, 80 N.Y.2d 273, 280; People v. Armlin, 37 N.Y.2d 167, 172), defendant was examined and found to be competent on two occasions, including two days before the plea proceedings, and nothing in the record casts doubt upon his fitness to proceed. Thus, the court did not abuse its discretion in declining to order a further competency examination ( see People v. Morgan, 87 N.Y.2d 878, 879-880).