Opinion
1248 KA 18-00591
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Kasean L. SHANNON, also known as Kasean Shannon, Defendant-Appellant. (Appeal No. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree ( Penal Law § 130.65 [2] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of, inter alia, attempted rape in the first degree (§§ 110.00, 130.35 [2] ) and incest in the third degree (§ 255.25). As a preliminary matter, we note that the People correctly concede in both appeals that defendant's waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 553-556, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ).
Contrary to defendant's contention in both appeals, County Court did not abuse its discretion in failing to order sua sponte a competency hearing pursuant to CPL 730.30 (1) during the sentencing proceeding. The fact that the presentence report reflected defendant's history of mental illness did not by itself call into question defendant's competence (see People v. Chapman , 179 A.D.3d 1526, 1527, 119 N.Y.S.3d 343 [4th Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 25, 148 N.E.3d 489 [2020] ; People v. Duffy , 119 A.D.3d 1231, 1233, 990 N.Y.S.2d 346 [3d Dept. 2014], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014], citing People v. Tortorici , 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999] ). Here, the court did not receive any "information which, objectively considered, should reasonably have raised a doubt about defendant's competency and alerted [it] to the possibility that defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in [the] defense" ( People v. Winebrenner , 96 A.D.3d 1615, 1616, 947 N.Y.S.2d 279 [4th Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012] [internal quotation marks omitted] ). The court therefore did not have " ‘reasonable ground[s] ... to believe that the defendant was an incapacitated person,’ " and so it was "under no obligation to issue an order of examination" ( People v. Morgan , 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ).
Finally, we conclude that the sentence in each appeal is not unduly harsh or severe, particularly given that the court imposed concurrent sentences of incarceration, four of which were imposed for sexual crimes against four separate victims on four separate dates. Thus, we conclude that "[t]he mitigating factors that defendant proffers in his brief are unexceptional, and they are more than fully accounted for by the agreed-upon, midrange sentence imposed" by the court ( People v. Wellington , 158 A.D.3d 1269, 1269, 68 N.Y.S.3d 357 [4th Dept. 2018], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ).