| People v Ortiz |
| 2007 NY Slip Op 10280 [46 AD3d 1409] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Josue Ortiz,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered June16, 2006. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the firstdegree (two counts).
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty oftwo counts of manslaughter in the first degree (Penal Law § 125.20 [1]). We note at theoutset that the plea proceedings and sentencing were conducted by County Court and that thehearings that preceded the plea were conducted by Supreme Court (Joseph S. Forma, J.).
We conclude that the evidence presented at the competency hearing conducted bySupreme Court pursuant to CPL 730.30 supports the court's determination that defendant was atthat time fit to proceed (see People vBrown, 4 AD3d 886, 886-887 [2004], lv denied 3 NY3d 637 [2004]; see also People v Mendez, 1 NY3d15, 20 [2003]). Contrary to defendant's contention, the court complied with the requirementsof CPL 730.30 and was not required to order additional competency examinations. Nothing inthe record suggests that defendant's condition deteriorated between the time of the psychiatricexaminations and the time of the competency hearing (see People v Lewis, 302 AD2d322, 323 [2003], lv denied 100 NY2d 540 [2003]) and, contrary to defendant'scontention, the court did not fail to comply with CPL article 730 when it made an informalrequest for an update of defendant's condition from defendant's treating psychiatrist (seePeople v Conforti, 263 AD2d 513 [1999], lv denied 94 NY2d 878 [2000]; Peoplev Sims, 217 AD2d 912 [1995], lv denied 87 NY2d 851 [1995]).We agree with defendant that his waiver of the right to appeal is invalid because CountyCourt, in conducting the plea proceedings, did not "engage [him] in an adequate colloquy toensure that the waiver . . . was a knowing and voluntary choice" (People vKemp, 255 AD2d 397, 397 [1998]). Thus, the contention of defendant that Supreme Courterred in refusing to suppress his statements to the police is properly before us (cf. People vKemp, 94 NY2d 831, 833 [1999]). Nevertheless, we reject that contention. The record of theHuntley hearing supports the court's conclusions that defendant was not in custody beforehe made incriminatory statements (see[*2]People v Flores, 23 AD3d 194, 195 [2005], lvdenied 6 NY3d 775 [2006]; Peoplev Rivera, 4 AD3d 131 [2004], lv denied 2 NY3d 805 [2004]), Mirandawarnings were properly given after such statements were made, and defendant validly waived hisrights before making further statements (see People v Zeigler, 299 AD2d 910, 911[2002], lv denied 99 NY2d 586 [2003]). Finally, the sentence is not unduly harsh orsevere. Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.