Opinion
2011-09-30
The PEOPLE of the State of New York, Respondent,v.Thomas BRYANT, Defendant–Appellant.
Kathleen P. Reardon, Rochester, for Defendant–Appellant.Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
Kathleen P. Reardon, Rochester, for Defendant–Appellant.Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25[2] ). Contrary to defendant's contention, he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea bargain ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). “County Court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391 [internal quotation marks omitted] ), and the record establishes that defendant “ ‘understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258, quoting Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Defendant further contends that the court abused its discretion in denying his motion to withdraw his Alford plea. Although that contention “ ‘survives his waiver of the right to appeal to the extent that [it] implicates the voluntariness of the plea’ ” ( People v. Dash, 74 A.D.3d 1859, 1860, 902 N.Y.S.2d 490, lv. denied 15 N.Y.3d 892, 912 N.Y.S.2d 581, 938 N.E.2d 1016; see People v. Toliver, 82 A.D.3d 1581, 919 N.Y.S.2d 256), we conclude that it is without merit. “The contention of defendant that his plea was involuntary because he was coerced by [correctional facility personnel] is belied by his responses to the court's questions during the plea colloquy, indicating that he was pleading guilty voluntarily and that no threats or promises had induced the plea” ( Toliver, 82 A.D.3d at 1582, 919 N.Y.S.2d 256). Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by the valid waiver of the right to appeal and is unpreserved for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground ( see People v. McCarthy, 83 A.D.3d 1533, 1534, 921 N.Y.S.2d 755). In any event, defendant's challenge lacks merit inasmuch as there is no requirement that an Alford plea contain a recitation of “ ‘every essential element’ ” of the crime ( People v. Hill, 16 N.Y.3d 811, 814, 921 N.Y.S.2d 181, 946 N.E.2d 169).
The further contention of defendant that the court erred in failing sua sponte to conduct a competency hearing pursuant to CPL 730.30(2) is not encompassed by his valid waiver of the right to appeal to the extent that it implicates the voluntariness of the plea ( see People v. Stoddard, 67 A.D.3d 1055, 889 N.Y.S.2d 282, lv. denied 14 N.Y.3d 806, 899 N.Y.S.2d 140, 925 N.E.2d 944). That contention, however, is unpreserved for our review inasmuch as defendant failed to move to withdraw the plea or to vacate the judgment of conviction on that ground ( see id.). In any event, defendant's contention lacks merit. The court issued an order of examination pursuant to CPL 730.30(1), and both psychiatric examiners who evaluated defendant concluded that he was competent to proceed. It “is well settled that a defendant is not entitled, as a matter of right, to have the question of his capacity to stand trial passed upon ... if the court is satisfied from the available information that there is no proper basis for questioning the defendant's sanity” ( People v. Mills, 28 A.D.3d 1156, 1156–1157, 813 N.Y.S.2d 592, lv. denied 7 N.Y.3d 903, 826 N.Y.S.2d 612, 860 N.E.2d 74
[internal quotation marks omitted]; see CPL 730.30[2]; People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260). “ ‘Moreover, it is noted that defense counsel ... was in the best position to assess defendant's capacity and request an examination pursuant to CPL 730.30(2)’ ” ( People v. Jermain, 56 A.D.3d 1165, 1165, 867 N.Y.S.2d 326, lv. denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445). Here, defense counsel did not request a competency hearing but, rather, he informed the court that defendant had received medication, understood the proceedings and was able to participate in his own defense ( see id.; People v. Loria, 12 A.D.3d 1125, 785 N.Y.S.2d 240, lv. denied 4 N.Y.3d 746, 749, 790 N.Y.S.2d 658, 661, 824 N.E.2d 59, 62). Defendant further contends that he was denied effective assistance of counsel based on the failure of defense counsel to request a competency hearing. To the extent that defendant's contention survives the plea and waiver of the right to appeal ( see People v. Gimenez, 59 A.D.3d 1088, 872 N.Y.S.2d 625, lv. denied 12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932; cf. People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097), we conclude that it is lacking in merit ( see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). “[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 [ Alford ] plea ..., and [t]here can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to make a motion or argument that has little or no chance of success” ( People v. Jorge N.T., 70 A.D.3d 1456, 1457, 894 N.Y.S.2d 625, lv. denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012).
Finally, defendant's challenge to the severity of the sentence is encompassed by the valid waiver of the right to appeal ( see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.