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The People of the State of v. Colleen M. Shiels

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


March 15, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
COLLEEN M. SHIELS, APPELLANT.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered March 2, 2010, convicting defendant upon her plea of guilty of the crime of attempted assault in the first degree.

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

MEMORANDUM AND ORDER

Calendar Date: February 10, 2012

Before: Mercure, Acting P.J., Lahtinen, Spain, Stein and McCarthy, JJ.

Defendant was charged with attempted murder in the second degree and assault in the first degree, stemming from the stabbing of her ex-husband in the chest. Pursuant to a plea agreement, defendant pleaded guilty to attempted assault in the first degree in full satisfaction of the charges. County Court thereafter sentenced defendant to the agreed-upon prison term of 131/2 years, to be followed by five years of postrelease supervision. Defendant appeals.

We affirm. Defendant's contention that she was denied the effective assistance of counsel is not preserved for our review in light of her failure to move to withdraw her plea or vacate the judgment of conviction (see People v Gomez, 72 AD3d 1337, 1338 [2010]; People v Gorrell, 63 AD3d 1381, 1381 [2009], lv denied 13 NY3d 744 [2009]). In any event, were we to review this claim, we would find it to be unavailing. Given the lack of anything in the limited record before us to indicate that counsel should have had doubts concerning defendant's ability to enter a knowing and voluntary plea, the fact that counsel did not request a CPL article 730 competency hearing did not deprive defendant of the effective assistance of counsel (see People v Gomez, 72 AD3d at 1338; People v Jenks, 69 AD3d 1120, 1122 [2010], lv denied 14 NY3d 841 [2010]), despite evidence in the record that defendant has a history of mental illness (see People v Lafoe, 75 AD3d 663, 663 [2010], lv denied 15 NY3d 953 [2010]; People v Barclay, 1 AD3d 705, 706 [2003], lv denied 1 NY3d 567 [2003]). Moreover, defendant's assertions that counsel failed to investigate her mental health history and potential defenses involve matters outside the record and are more properly the subject of a CPL article 440 motion (see People v Pendelton, 81 AD3d 1037, 1039 [2011], lv denied 16 NY3d 898 [2011]; People v Watson, 61 AD3d 1217, 1218 [2009], lv denied 12 NY3d 930 [2009]).

Mercure, Acting P.J., Lahtinen, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120315

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