Opinion
May 7, 1999
Present — Denman, P. J., Pine, Lawton, Hurlbutt and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of arson in the third degree (Penal Law § 150.10). The contention of defendant that he was denied effective assistance of counsel does not survive his guilty plea because there is no indication that the alleged ineffective assistance had any impact on the plea bargaining process or the voluntariness of the plea ( see, People v. Conyers, 227 A.D.2d 793, lv denied 88 N.Y.2d 982; People v. Lopez, 212 A.D.2d 1053, lv denied 85 N.Y.2d 976; People v. Wood, 207 A.D.2d 1001). Insofar as defendant alleges that he was denied effective assistance because defense counsel did not request a competency hearing, there is no evidence in the
Appeal from Judgment of Herkimer County Court, Kirk, J. — Arson, 3rd Degree.
record that defendant may have been incompetent. Moreover, defendant has failed to demonstrate that defense counsel lacked a legitimate reason for not requesting a competency hearing (see, People v. Wheeler, 249 A.D.2d 774, 775).
We reject defendant's further contention that County Court, sua sponte, should have ordered a competency evaluation (see, People v. Wheeler, supra; see also, People v. Carbone, 159 A.D.2d 511, lv denied 76 N.Y.2d 732). There is no evidence in the record that would have warranted the court to question defendant's competency or ability to understand the nature of the proceedings or the charges (see, People v. Oldring, 191 A.D.2d 346, lv denied 81 N.Y.2d 1077; see also, People v. Parker, 191 A.D.2d 717, lv denied 81 N.Y.2d 1078).
The contentions that defendant was denied effective assistance of counsel because he had a conflict of interest with his attorney and because the prosecutor improperly promised codefendants leniency in exchange for testimony against defendant are not reviewable on this record. The proper vehicle for raising such issues is a CPL 440.10 motion.