Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. William HIBBARD, Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. William Hibbard, Defendant–Appellant Pro Se. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant.
William Hibbard, Defendant–Appellant Pro Se.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20 ). Preliminarily, we note that defendant's waiver of the right to appeal is not valid. The perfunctory inquiry made by County Court during the colloquy was not sufficient "to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v. Beaver, 128 A.D.3d 1493, 1494, 7 N.Y.S.3d 816 [internal quotation marks omitted] ). Moreover, although the record includes a signed written waiver of the right to appeal, there was no "attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" and understood them (People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; see People v. Bradshaw, 18 N.Y.3d 257, 265–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; cf. People v. Bryant, 28 N.Y.3d 1094, 1095–1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ).
Defendant's challenge in his main brief to the factual sufficiency of the plea allocution is not preserved for our review (see People v. Lugg, 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785 ; see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ) and is lacking in merit in any event. No factual basis for the plea is required where, as here, "a defendant enters a negotiated plea to a lesser crime than the one charged" (People v. Johnson, 23 N.Y.3d 973, 975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 ; see People v. Gibson, 140 A.D.3d 1786, 1787, 32 N.Y.S.3d 413, lv. denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 ).
Defendant's contention in his pro se supplemental brief that the court erred in accepting the guilty plea notwithstanding defendant's mental health history is likewise not preserved for our review (see generally People v. Mobley, 118 A.D.3d 1336, 1337, 988 N.Y.S.2d 323, lv. denied 24 N.Y.3d 1121, 3 N.Y.S.3d 763, 27 N.E.3d 477 ). In any event, the court properly accepted the guilty plea after conducting an appropriate inquiry into defendant's history of mental health problems. A "history of prior mental illness or treatment does not itself call into question defendant's competence" (People v. Taylor, 13 A.D.3d 1168, 1169, 787 N.Y.S.2d 539, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684 ), and nothing on the record before us establishes that defendant was so lacking in "orientation or cognition that he lacked the capacity to plead guilty" (People v. Alexander, 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802 ). To the contrary, the record establishes that defendant had a rational understanding of the nature and effect of his plea (see generally People v. Young, 66 A.D.3d 1445, 1446, 885 N.Y.S.2d 860, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 ; People v. Lear, 19 A.D.3d 1002, 1002, 796 N.Y.S.2d 293, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 ).
Finally, contrary to defendant's contention in his main brief, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.