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The People of the State of New York v. Edwin C. Dowling Ii

State of New York Supreme Court, Appellate Division Third Judicial Department


February 9, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
EDWIN C. DOWLING II, APPELLANT.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered November 23, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.

The opinion of the court was delivered by: Garry, J.

MEMORANDUM AND ORDER

Calendar Date: January 5, 2012

Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ.

In July 2005, defendant was operating a motor vehicle with three passengers when he lost control and struck a boulder, killing one of the passengers. He thereafter pleaded guilty to driving while intoxicated and criminally negligent homicide and was sentenced to five years of probation and 90 days in jail on an intermittent basis. In August 2010, defendant admitted to violating the terms of his probation by failing to report to the Probation Department as directed, being away from home overnight, failing to complete recommended substance abuse treatment, purchasing and consuming alcoholic beverages, entering premises that sell alcoholic beverages, failing to produce urine samples for drug and alcohol testing and using marihuana. Sentencing was adjourned for six months to provide defendant another opportunity to successfully complete a substance abuse treatment program. In September 2010, the Probation Department reported that defendant had left the recommended treatment program prior to completing it and that he had admitted to being in a bar, but denied drinking alcohol. After further adjournments in order to allow defendant to complete a treatment program proved unsuccessful, County Court revoked defendant's probation and sentenced him to a prison term of 1 to 31/2 years. Defendant appeals and we affirm.

We reject defendant's contention that County Court erred in not conducting a competency hearing pursuant to CPL 730.30. "A defendant is presumed to be competent and is not entitled, as a matter of law, to a competency examination unless the court has reasonable grounds to believe that the defendant, due to some mental disease or defect, is incapable of understanding the proceedings against him or her" (People v Woodard, 17 AD3d 929, 930 [2005], lv denied 5 NY3d 811 [2005] [citations omitted]). Although defendant unquestionably suffered a traumatic brain injury in the accident, he gave coherent responses to the court's inquiries and there is nothing in the record to indicate that he did not understand the charges against him or was unable to assist in his defense (see id.; People v Daley, 302 AD2d 745, 746 [2003]; People v Martin, 239 AD2d 800, 801 [1997], lv denied 90 NY2d 941 [1997]).

Defendant's argument that his guilty plea to violating the terms of his probation was not voluntary, knowing or intelligent is unpreserved for our review due to his failure to move to withdraw his plea or vacate his judgment of conviction (see People v Cerone, 75 AD3d 835, 835-836 [2010], lv denied 15 NY3d 850 [2010]; People v Talmadge, 48 AD3d 836, 836 [2008]). Further, in light of defendant's repeated failure to complete substance abuse treatment, we cannot conclude that County Court's denial of defendant's request for a further adjournment of sentencing in order to enroll in another treatment program was an abuse of its discretion (see generally People v Singleton, 41 NY2d 402, 405 [1977]). Finally, given defendant's repeated inability to abide by the conditions of his probation, we are unpersuaded by defendant's contention that the sentence imposed is harsh or excessive (see People v Kirk, 87 AD3d 1205 [2011]). Nor does our review of the record reveal either an abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Walts, 34 AD3d 1043, 1044 [2006], lv denied 8 NY3d 850 [2007]).

Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120209

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