| People v Wimes |
| 2008 NY Slip Op 02374 [49 AD3d 1286] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Willie E.Wimes, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered May 24, 2006. The judgment convicted defendant, upon his plea of guilty, of attemptedassault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10 [3]). "To theextent that defendant challenges the factual sufficiency of the plea allocution, his waiver of theright to appeal encompasses that contention" (People v Spivey, 9 AD3d 886, 886 [2004], lv denied 3NY3d 712 [2004]; see People vDonahue, 21 AD3d 1359 [2005], lv denied 6 NY3d 775 [2006]). Contrary todefendant's further contention, Supreme Court did not abuse its discretion in denying his motionto withdraw his plea on the ground that it was involuntary.
" '[R]efusal to permit withdrawal does not constitute an abuse of . . . discretionunless there is some evidence of innocence, fraud, or mistake in inducing the plea. . . [and, h]ere, defendant failed to present evidence to warrant withdrawal of theplea' " (People v Pillich, 48 AD3d1061 [2008]). The plea was entered on the third day of trial, in satisfaction of charges ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault inthe first degree (§ 120.10 [1], [3]), and criminal use of a firearm in the first degree (§265.09 [1] [b]). Although there had been testimony at trial that defendant was intoxicated at thetime of the incident, there was no mention of intoxication during the plea allocution, despite thefact that intoxication could have negated the element of depraved indifference in the crime towhich defendant pleaded guilty (see § 15.25; People v Coon, 34 AD3d 869, 870 [2006]). Thus, because nothingin defendant's statements during the plea colloquy cast "significant doubt upon the defendant'sguilt or otherwise call[ed] into question the voluntariness of the plea," the court had no duty toconduct a further inquiry to ensure that the plea was voluntary (People v Lopez, 71 NY2d662, 666 [1988]). Indeed, it may reasonably be inferred that the People agreed to the plea to alesser charge based on the evidence at trial of defendant's intoxication, from which the jury mighthave found that defendant was unable to form the requisite intent to commit the crimes ofattempted murder or intentional assault, as charged in the indictment, while defendant agreed tothe plea because the jury might have found to the contrary.[*2]
Contrary to the further contention of defendant, the courtdid not abuse its discretion by failing, sua sponte, to order a competency examination pursuant toCPL article 730 (see People vTaylor, 13 AD3d 1168, 1169 [2004], lv denied 4 NY3d 836 [2005]; see generally People v Williams, 35AD3d 1273, 1274-1275 [2006], lv denied 8 NY3d 928 [2007]). "[D]efendantresponded coherently and rationally during the plea proceeding and indicated that he understoodthe implications of his decision to accept the plea agreement" (People v Rivas, 206 AD2d549, 550 [1994]; see Taylor, 13 AD3d at 1169-1170).
We have reviewed defendant's remaining contentions and conclude that they are lacking inmerit. Present—Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.