Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered October 20, 2008, convicting defendant upon his plea of guilty of the crime of attempted aggravated assault upon a police officer (two counts).
The opinion of the court was delivered by: Garry, J.
Calendar Date: February 17, 2011
Before: Peters, J.P., Lahtinen, Malone Jr., Kavanagh and Garry, JJ.
In August 2007, shortly after midnight, two State Troopers approached a vehicle parked on the side of and perpendicular to a road in the Town of Tupper Lake, Franklin County. The officers questioned defendant, who was the only person in the car, and observed the smell of alcohol as well as beer containers on the passenger seat of the car. Defendant produced his driver's license and, when asked for the vehicle's registration, proffered an insurance card in the name of another individual. One of the officers continued to question defendant, while the second walked around the car, noticing the end of a concealed pistol on the passenger seat. The second officer informed the first of the presence of the weapon and suggested that defendant be removed from the car. Defendant then grabbed the pistol and exited the car, and an exchange of gunfire ensued. One officer was injured by shrapnel, and defendant was wounded in the head and neck. Defendant's injuries led to a month-long coma, blindness in one eye, significant and permanent impairment of his legs and memory loss as to the events involving the officers.
A grand jury subsequently handed up a 17-count indictment. County Court ordered a competency examination pursuant to CPL article 730 and, following a hearing, found defendant competent to stand trial. Defendant thereafter entered an Alford plea to two counts of attempted aggravated assault upon a police officer in full satisfaction of the indictment,*fn1 executed a valid waiver of appeal and was sentenced to two consecutive prison terms of 121/2 years to be followed by five years of postrelease supervision. Defendant appeals, and we affirm.
Defendant first contends that County Court erred in finding him fit to proceed to trial, asserting that his amnesia made him unable to assist counsel with his defense. CPL 730.10 (1) defines an incapacitated person as "a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him [or her] or to assist in his [or her] own defense" (see People v Francabandera, 33 NY2d 429, 432 ).*fn2
To be competent, "the defendant must have 'sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding -- and . . . a rational as well as factual understanding of the proceedings against him [or her]'" (People v Mendez, 1 NY3d 15, 19 , quoting Dusky v United States, 362 US 402, 402  [emphasis added]). This standard requires merely a "modicum of intelligence [to] assist counsel" (People v Francabandera, 33 NY2d at 436), and where a defendant suffers from memory loss, a court will not automatically find the defendant not competent to stand trial (see id. at 438-439; People v Surdis, 77 AD3d 1018, 1018 n 1 ).
Here, County Court appropriately ordered competency examinations and, when differences arose among the submitted recommendations, properly ordered a hearing to make a final determination. The two evaluations that found defendant not competent to stand trial based these recommendations solely on defendant's inability to assist counsel due to his memory loss; neither evaluation considered his "present ability to consult with his lawyer" (People v Mendez, 1 NY3d at 19 [internal quotation marks and citation omitted]). All three evaluations found defendant sufficiently aware of the charges he was facing, the gravity of those charges, and the roles of the judge, jury, and prosecutor during a trial. Significantly, during one interview, defendant expressed a desire to find new counsel and discussed hypothetical issues concerning how to assist counsel. We accord deference to the court's credibility assessments concerning the conflicting evaluations (see id. at 20; People v Surdis, 77 AD3d at 1018-1019) and, upon examination of the record, find no reason to disturb the court's ruling that defendant was fit to proceed to trial.
Defendant next argues that his Alford plea was not voluntary due to the competency determination and his memory loss. Although this assertion survives defendant's valid appeal waiver, it is unpreserved for our review as he neither moved to withdraw his plea nor to vacate the judgment of conviction (see People v Miller, ___ AD3d ___, ___, 2011 NY Slip Op 01537, *1 ; People v Pendelton, 81 AD3d 1037, 1038 ). In any event, defendant's Alford plea represents "a rational choice among the alternatives available to him" (People v Freidman, 39 NY2d 463, 466 ) and a voluntary decision to avoid the risks of trial and the possibility of consecutive sentences for numerous felonies (see People v Alexander, 97 NY2d 482, 487 ; People v Legault, 180 AD2d 912, 913 , lv denied 79 NY2d 1051 ; see also People v Francabandera, 33 NY2d at 434). The plea allocution set forth the "strong record evidence of actual guilt" and County Court's questioning demonstrated that defendant's plea was knowingly and voluntarily made (Matter of Silmon v Travis, 95 NY2d 470, 472, 474 n 1 ).
Finally, defendant asserts that given his physical impairments and relatively limited criminal history, the sentence imposed is harsh and excessive. This contention, however, does not survive defendant's valid waiver of the right to appeal (see People v Pendelton, 81 AD3d at 1039).
Peters, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur.
ORDERED that the judgment is ...