| People v Sorey |
| 2008 NY Slip Op 08039 [55 AD3d 1063] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Amie L. Sorey,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered July 3, 2007, convicting defendant upon her plea of guilty of the crime of attempted burglaryin the second degree.
Defendant was charged by indictment with conspiracy in the fourth degree, two counts ofattempted robbery in the second degree, two counts of burglary in the second degree, possession ofburglar's tools, hindering prosecution in the second degree and tampering with physical evidence basedupon her role as the getaway car driver in an attempted home invasion robbery that resulted in thedeath of one accomplice. Pursuant to a negotiated plea agreement and in full satisfaction of theindictment, defendant pleaded guilty to attempted burglary in the second degree, waiving her right toappeal, and was thereafter sentenced as a second felony offender to six years in prison, with five yearsof postrelease supervision. Defendant now appeals, alleging that she was mentally incompetent at thetime she entered her guilty plea and that she was denied the effective assistance of counsel.
Initially, defendant's challenge to the voluntariness of her plea, although not precluded by her waiverof her right to appeal, is not preserved for this Court's review as she failed to move to either withdrawher plea or to vacate the judgment of conviction (see People v Cardinale, 43 AD3d 558, 559 [2007], lv denied 9NY3d 1005 [2007]; People v Scott, 12AD3d 716, 717[*2][2004]). In any event, we would find thatdefendant voluntarily entered a knowing and intelligent guilty plea. Although the record reveals thatdefendant has a history of depression for which she takes medication, such history does not necessarilyrender defendant mentally incompetent to enter a knowing, intelligent and voluntary guilty plea (see People v Harrison, 52 AD3d 969,970 [2008], lv denied 11 NY3d 737 [2008]; People v Mears, 16 AD3d 917, 918 [2005]). Defendant activelyparticipated in the plea colloquy, intelligently responded to County Court's questions, indicated that sheunderstood the consequences of pleading guilty and affirmatively stated that her medications did notaffect her ability to comprehend the proceedings or her ability to enter a guilty plea. As there is nothingin the record to indicate that defendant lacked the capacity to enter a knowing and voluntary plea, wewould also find that County Court did not abuse its discretion by accepting defendant's plea withoutordering a CPL article 730 competency hearing (see People v Harrison, 52 AD3d at 970;People v Mears, 16 AD3d at 918).
Finally, although defendant's claim that she was denied the effective assistance of counsel islikewise unpreserved, were we to consider it, we would find it to be without merit. Counsel madeappropriate pretrial motions and was able to negotiate a fair and favorable plea agreement, despitedefendant's lengthy criminal history. Under these circumstances, it cannot be said that defendant wasnot provided with meaningful representation (see People v Kagonyera, 23 AD3d 840, 841 [2005]; People vScott, 12 AD3d at 717-718).
Spain, J.P., Lahtinen, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.