| People v Borom |
| 2008 NY Slip Op 08029 [55 AD3d 1041] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jay Borom,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered April 7, 2006, convicting defendant upon his plea of guilty of two counts of the crime ofattempted robbery in the first degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to two reduced counts ofattempted robbery in the first degree. After defendant waived his right to appeal, County Courtimposed the agreed-upon sentence. On defendant's appeal, we affirm.
County Court was not required to order a psychological examination to determine defendant'sfitness to proceed. Because defendants are presumed competent, the decision to order such anexamination lies within the sound discretion of the trial court and must be based upon reasonablegrounds to believe that the defendant lacks capacity to stand trial (see CPL 730.30 [1]; People v Surdis, 23 AD3d 841, 843[2005], lv denied 6 NY3d 818 [2006]; People v Daley, 302 AD2d 745, 746 [2003];People v Maldonado, 273 AD2d 537, 540 [2000], lv denied 95 NY2d 867 [2000]).Here, although defendant informed the court that he was diagnosed as bipolar and schizophrenic, healso stated that he understood the proceedings, he was prescribed several medications for thesedisorders, he had taken his medications on the morning of his plea and the medications made his headclearer. Defense counsel mentioned defendant's mental illness and his previous confinement in a prisonpsychiatric unit, but counsel never requested an [*2]examination andaverred that he had thoroughly discussed the plea with defendant and recommended it. Under thecircumstances, the court reasonably exercised its discretion by not ordering a CPL article 730examination (see People v Douglas, 26AD3d 522, 524 [2006], lv denied 7 NY3d 847 [2006]; People v Surdis, 23AD3d at 843).
Defendant contends that his plea was involuntary due to his mental illness. The record, includingCounty Court's thorough and detailed questioning and defendant's lucid responses, does not supportthis contention (see People v Kagonyera,23 AD3d 840, 841 [2005]).
Counsel's decision not to request a mental examination did not amount to ineffective assistance.Counsel was aware of defendant's mental health issues and placed those issues before the court.Defendant's behavior in court did not indicate that he was an incapacitated person (see CPL730.10 [1]). Defendant asserts that the record lacks proof that he was aware of a potential defensebased upon his mental condition. This assertion, based on information outside the record, must beraised in a motion pursuant to CPL article 440 (see People v Corbett, 52 AD3d 1023, 1024 [2008]).
Defendant's valid waiver of appeal bars his argument that his sentence is harsh and excessive (see People v Lopez, 6 NY3d 248, 256[2006]; People v Phillips, 41 AD3d969, 970 [2007]).
Mercure, J.P., Peters, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.