| People v Agrusti |
| 2014 NY Slip Op 08514 [123 AD3d 1158] |
| December 4, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEdward Agrusti, Appellant. |
Brian M. Callahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered January 8, 2013, convicting defendant upon his plea of guilty of thecrime of criminal possession of a forged instrument in the third degree.
Defendant pleaded guilty to one count of criminal possession of a forged instrumentin the third degree in satisfaction of a four-count indictment stemming from an incidentin which he attempted to pass a forged check. The plea agreement included the waiver ofdefendant's right to appeal.
Defendant appeals, arguing that he lacked the competency to enter his plea, and thatCounty Court erred in failing to order a second competency hearing prior to accepting hisplea.[FN*] As itimplicates the voluntariness of the plea, this argument is not foreclosed by defendant'sappeal waiver; it is, however, unpreserved, as defendant did not seek relief by means ofan appropriate postallocution motion (see People v Chavis, 117 AD3d 1193, 1194 [2014]; People v Mattison, 94 AD3d1157, 1158 [2012]). Nor do we find the narrow exception to the preservationrequirement to be applicable here, as defendant did not make any statements during hisplea allocution that would cast doubt on his guilt or negate an element of the crime (see e.g. People v Ladieu, 105AD3d 1265, 1266 [2013], lv denied 21 NY3d 1017 [2013]). In any event,we would have found no abuse of discretion in the court's failure to order a secondcompetency hearing (see People v Tortorici, 92 NY2d 757, 765-766 [1999],cert denied 528 US 834 [1999]; People v Dantzler, 63 AD3d 1376, 1377-1378 [2009],lv denied 14 NY3d 799 [2010]).
Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant hadpreviously been declared incompetent, but had been reevaluated and found competentfollowing a period of confinement and care.