Opinion
2015-02848, Ind. No. 2162/13.
05-18-2016
The PEOPLE, etc., respondent, v. Dwight THOMAS, appellant.
Jillian S. Harrington, Staten Island, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Donald Berk of counsel; Matthew Frankel on the brief), for respondent.
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Donald Berk of counsel; Matthew Frankel on the brief), for respondent.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Spergel, J.), rendered April 2, 2014, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed. Contrary to the defendant's contention, he validly waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Nevertheless, his contentions concerning the voluntariness of his plea of guilty survive his appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ). However, this issue is unpreserved for appellate review, since the defendant did not move to withdraw the plea (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ; People v. Canole, 123 A.D.3d 940, 996 N.Y.S.2d 922 ; People v. Pryor, 11 A.D.3d 565, 566, 782 N.Y.S.2d 803 ). In any event, the defendant's plea of guilty was knowing, voluntary, and intelligent. Contrary to the defendant's contention, there was nothing in the plea allocution that triggered the Supreme Court's duty to inquire into a potential affirmative defense to the charge based upon mental disease or defect (see Penal Law § 40.15 ; People v. Serrano, 160 A.D.2d 745, 746, 554 N.Y.S.2d 55 ; cf. People v. Grason, 107 A.D.3d 1015, 966 N.Y.S.2d 882 ). The fact that the presentence investigation report indicated that the defendant had been hospitalized and prescribed medication for schizophrenia did not trigger such a duty of inquiry (see People v. Faulknor, 134 A.D.3d 404, 19 N.Y.S.3d 730 ; People v. Hill, 128 A.D.3d 1479, 1480, 8 N.Y.S.3d 805 ). Moreover, there is no support in the record for the defendant's contention that he lacked the capacity to understand the proceedings against him or that he was unable to assist in his defense (see CPL 730.30[1] ; People v. Narbonne, 131 A.D.3d at 627, 14 N.Y.S.3d 917 ; People v. Kelly, 121 A.D.3d 713, 993 N.Y.S.2d 169 ; People v. M'Lady, 59 A.D.3d 568, 873 N.Y.S.2d 331 ; People v. Parker, 191 A.D.2d 717, 595 N.Y.S.2d 519 ; People v. Helm, 178 A.D.2d 656, 577 N.Y.S.2d 889 ). To the contrary, the defendant's responses at the plea and sentencing proceedings were appropriate, and did not indicate that he was incapacitated (see People v. M'Lady, 59 A.D.3d at 568, 873 N.Y.S.2d 331 ; People v. Pryor, 11 A.D.3d at 566, 782 N.Y.S.2d 803 ). Under these circumstances, the Supreme Court was not required to sua sponte direct a competency examination pursuant to CPL 730.30 (see People v. Monk, 29 A.D.3d 605, 815 N.Y.S.2d 130 ; People v. Eherts, 21 A.D.3d 905, 906, 800 N.Y.S.2d 514 ; People v. Graham, 272 A.D.2d 479, 479–480, 708 N.Y.S.2d 336 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Upson, 134 A.D.3d 1058, 21 N.Y.S.3d 688 ; People v. Haywood, 122 A.D.3d 769, 769–770, 996 N.Y.S.2d 137 ). Insofar as the defendant contends that his counsel's conduct affected the voluntariness of the plea, the claim is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “mixed claim” of ineffective assistance (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 A.D.3d 805, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ).