Calendar Date: June 5, 2018
Ferrara, Monticello, for appellant.
David Soares, District Attorney, Albany (Emily Schultz of
counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker,
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (McDonough, J.),
rendered July 8, 2016 in Albany County, convicting defendant
upon his plea of guilty of the crimes of aggravated criminal
contempt and failure to register or verify as a sex offender.
a risk level two sex offender, was charged in a seven-count
indictment with various crimes stemming from two separate
incidents that occurred in late 2015. Additionally, defendant
was charged in a superior court information with failure to
register or verify as a sex offender. Pursuant to a
negotiated plea agreement, the People agreed to dismiss the
top two counts of the indictment and permit defendant to
plead guilty to count 3 (aggravated criminal contempt) in
full satisfaction of the remaining counts with the
understanding that defendant would waive his right to appeal
and would be sentenced to a prison term of 3½ to 7
years. The plea agreement also encompassed the superior court
information and, in that regard, defendant agreed to waive
indictment, as well as his right to appeal, and plead guilty
to failure to register or verify as a sex offender in
exchange for one year in the local jail - to be served
concurrently with the agreed-upon prison term to be imposed
upon his conviction of aggravated criminal contempt.
Following execution of the relevant waivers, defendant
pleaded guilty to the charged crimes and thereafter was
sentenced in accordance with the terms of the plea agreement.
Defendant now appeals.
defendant's present claims - that his guilty plea was not
knowing, intelligent and voluntary and that Supreme Court
erred in accepting his plea without first conducting a
competency hearing - survive a valid waiver of the right to
appeal (see People v Hilts, 157 A.D.3d 1123, 1124
; People v Schreiner, 140 A.D.3d 1399, 1399
; People v Stover, 123 A.D.3d 1232, 1232
, lv denied 26 N.Y.3d 936');">26 N.Y.3d 936 ), "such
claims are unpreserved for our review absent record evidence
of an appropriate postallocution motion" (People v
Hilts, 157 A.D.3d at 1124; see People v Duffy,
126 A.D.3d 1142, 1142 ; People v Stover, 123
A.D.3d at 1232; People v Agrusti, 123 A.D.3d 1158,
1158 , lv denied 26 N.Y.3d 1142');">26 N.Y.3d 1142 ).
Additionally, given that "defendant did not make any
statements during his plea allocution that would cast doubt
on his guilt or negate an element of the [charged]
crime[s]," the narrow exception to the preservation
requirement was not triggered (People v Agrusti, 123
A.D.3d at 1158; see People v Stover, 123 A.D.3d at
1232; People v Vandemark, 117 A.D.3d 1339, 1340
, lv denied 24 N.Y.3d 965');">24 N.Y.3d 965 ), and we
decline defendant's invitation to take corrective action
in the interest of justice.
event, were we to address defendant's arguments, we would
find them to be lacking in merit. "A defendant is
presumed competent and, absent reasonable grounds to believe
that he or she is incapable of understanding the proceedings
due to a mental disease or defect, a court is not required to
order a competency hearing based solely upon a history of
substance abuse or mental illness" (People v
Hilts, 157 A.D.3d at 1124 [internal quotation marks,
brackets and citations omitted]; see People v
Spencer, 156 A.D.3d 731, 732 ; People v
Blackmon, 122 A.D.3d 1071, 1072 , lv
denied 24 N.Y.3d 1218');">24 N.Y.3d 1218 ). Despite expressing some
initial confusion regarding his ability to obtain "a
psychiatric evaluation," defendant never requested a
competency hearing (see People v Vandemark, 117
A.D.3d at 1340) and, in response to Supreme Court's
inquiry, confirmed that he was waiving any motions or
hearings that could be made or requested upon his behalf.
Defendant identified the medications he was taking, assured
the court that he was thinking clearly, indicated that he
understood the proceedings and, on balance, provided coherent
and appropriate responses during the course of the plea
colloquy (see id.). Under these circumstances, we
would not find that defendant made any statements that either
called into question the voluntariness of his plea or
otherwise alerted Supreme Court "of the need to inquire
as to his competency or to hold a competency hearing"
(People v Hilts, 157 A.D.3d at 1124 [internal
quotation marks and citation omitted]; see People v
Bennett, 30 A.D.3d 631, 631 , lv denied 7
N.Y.3d 809 ). Accordingly, the judgment of conviction
P.J., Egan Jr., Aarons and ...