| People v Balanean |
| 2008 NY Slip Op 07395 [55 AD3d 1353] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Cornel Balanean,Appellant. (Appeal No. 1.) |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Joseph D. McGuire, J.), rendered June 12,2000. The judgment convicted defendant, upon his plea of guilty, of murder in the second degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea ofguilty of two counts of murder in the second degree (Penal Law § 125.25 [2]) and, in appealNo. 2, he appeals from a judgment convicting him upon his plea of guilty of attempted murder in thesecond degree (§§ 110.00, 125.25 [1]). To the extent that the contention of defendantwith respect to each appeal that he was denied effective assistance of counsel survives his respectiveguilty pleas and waivers of the right to appeal (see People v Santos, 37 AD3d 1141 [2007], lv denied 8 NY3d950 [2007]; see also People v Mahipat,49 AD3d 1243 [2008]; People v Perillo, 300 AD2d 1097 [2002], lv denied99 NY2d 618 [2003]), we conclude that it is without merit. Defendant received "an advantageousplea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People vFord, 86 NY2d 397, 404 [1995]).
Contrary to the further contention of defendant, County Court properly determined that defendantwas competent to stand trial despite his contention that he had amnesia and allegedly was unable torecall the events underlying the crimes. The People established by a preponderance of the evidence thatdefendant had "sufficient present ability to consult with his lawyer with a reasonable degree of rationalunderstanding . . . and . . . a rational as well as factual understanding of theproceedings against him" (Dusky v United States, 362 US 402, 402 [1960] [internal quotationmarks omitted]; see People v Mendez, 1NY3d 15, 19-20 [2003]). In any event, even assuming, arguendo, that defendant had amnesia, wenote that there is no requirement that he be found incompetent to stand trial. As the Court of Appealshas written, "[a]s a guideline for . . . cases in which [a] defendant claims inability to standtrial due to amnesia proved to be genuine, we approve of a . . . motion (pursuant to CPL730.10 [1]) . . . whereupon the Judge to whom it is addressed shall determine whether,under all the circumstances and with regard to the nature of the crime and the availability of evidence tothe defendant, it is likely he can receive a fair trial" (People v Francabandera, 33 NY2d 429,438 [1974]; see [*2]also People v Goodell, 164 AD2d 321,327 [1990], affd 79 NY2d 869 [1992]). Present—Smith, J.P., Lunn, Fahey andPeradotto, JJ.