| People v Chavis |
| 2014 NY Slip Op 03304 [117 AD3d 1193] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPhilemon Chavis, Appellant. |
Del Atwell, Albany, for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Stein, J.P. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedAugust 11, 2011 in Albany County, convicting defendant upon his plea of guilty of thecrime of assault in the first degree.
Defendant was charged in a 10-count superseding indictment with, among otherthings, kidnapping in the first and second degrees, attempted murder in the seconddegree and assault in the first degree (two counts) stemming from an incident wherein hebrutally attacked his wife, struck her head on a hard surface and inflicted significantinjuries. Defendant ultimately accepted an offer by the People and pleaded guilty to onecount of assault in the first degree, in full satisfaction of the superseding indictment, andwaived his right to appeal the conviction and sentence. He was subsequently sentenced,in accord with the plea agreement, to a prison term of 19 years, plus five years ofpostrelease supervision. Defendant now appeals, and we affirm.
The essence of defendant's claims on appeal is that, as a result of his various mentalhealth conditions, he was not competent to plead guilty and his counsel was ineffectivefor failing to recognize this incompetency and request a competency hearing. He furtherargues that Supreme Court should not have accepted his plea without such hearing andthat, because his plea was not knowingly, voluntarily and intelligently entered, hisjudgment of conviction should be vacated. For the reasons that follow, defendant'sarguments are unavailing.
[*2] Initially, wereject defendant's challenge to his appeal waiver. The record of the plea colloquyconfirms that Supreme Court distinguished the right to appeal from the rightsautomatically forfeited upon a guilty plea and explained the consequences of defendant'splea. Additionally, defendant executed a written waiver in court and verballyacknowledged discussing the waiver with counsel and that he understood that he wasvoluntarily relinquishing this right. We are also unpersuaded by defendant's claim thathis mental health issues interfered with his ability to effectively waive his right to appeal.Under these circumstances, we are satisfied that defendant validly waived his right toappeal his conviction and sentence (see People v Campbell, 114 AD3d 996, 997 [2014]; People v Newton, 113 AD3d1000, 1001 [2014]; Peoplev Budwick, 82 AD3d 1447, 1448 [2011], lv denied 17 NY3d 857[2011]).
While defendant's further claims—that he was not mentally competent to entera plea and that his counsel was ineffective for failing to request a competencyhearing—survive his appeal waiver because they impact the voluntariness of hisplea (see People vMcFarren, 83 AD3d 1209, 1210 [2011], lv denied 17 NY3d 860[2011]), defendant did not preserve them by a proper postallocution motion (see People v Shiels, 93 AD3d992, 992 [2012]; People vBorden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 [2012];People v McFarren, 83 AD3d at 1210; People v Budwick, 82 AD3d at1448; People v Coons, 73AD3d 1343, 1344 [2010], lv denied 15 NY3d 803 [2010]; People v Gomez, 72 AD3d1337, 1338 [2010]). Moreover, the narrow exception to the preservation requirementwas not implicated, as defendant did not make any statements during the plea colloquythat cast doubt on his guilt or otherwise called into question the voluntariness of his plea(see People v Borden, 91 AD3d at 1125; People v Coons, 73 AD3d at1344).
In any event, were the claims properly before us, we would find them to be withoutmerit. Defendant's history of mental illness, alone, did not necessarily render himincompetent to enter a knowing and voluntary plea or require Supreme Court to hold aCPL article 730 hearing (see People v Gomez, 72 AD3d at 1338). Moreover, inresponse to Supreme Court's inquiry during the plea colloquy, defendant confirmed thathe understood the proceedings and denied having any physical, mental or emotionalillness or having taken any medication that interfered with his ability to understand whatwas occurring. Nor do we discern any indication from the record that defendant sufferedfrom a mental defect that impacted the voluntariness of his plea (see People vShiels, 93 AD3d at 993; People v Coons, 73 AD3d at 1345; People vGomez, 72 AD3d at 1338).[FN*]
Defendant's contention that counsel was ineffective for failing to procure a moreadvantageous sentence does not impact on the voluntariness of his plea and, therefore, isprecluded by his valid appeal waiver (see People v Young, 100 AD3d 1186, 1189 [2012], lvdenied 21 NY3d 1021 [2013]; People v Whitehead, 73 AD3d 1340, 1341 [2010], lvdenied 15 NY3d 779 [2010]), as is his assertion that his sentence was harsh andexcessive (see People v Campbell, 114 AD3d at 997; People v Newton,113 AD3d at 1001; People vGraves, 113 AD3d 998, 999 [2014]). To the extent not specifically addressedherein, we find defendant's remaining contentions to be without merit.
[*3] McCarthy, Rose and Egan Jr., JJ., concur. Ordered thatthe judgment is affirmed.
Footnote *:Prior to entering hisplea, defendant's counsel requested a mental health evaluation of defendant. Thepsychiatrist who performed such evaluation concluded that defendant had the capacity toproceed with the criminal action.