| People v Kaszubinski |
| 2008 NY Slip Op 08201 [55 AD3d 1133] |
| October 30, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RebeccaKaszubinski, Appellant. |
—[*1] Jeffrey A. Aumell, District Attorney, Wampsville, for respondent.
Kavanagh, J. Appeals (1) from a judgment of the County Court of Madison County (McDermott,J.), rendered January 26, 2006, convicting defendant upon her plea of guilty of the crime of murder inthe second degree, and (2) by permission, from an order of said court, entered May 29, 2007, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
In June 2005, defendant was indicted on two counts of murder in the second degree as the result ofthe May 2005 shooting death of her fiancé. Pursuant to a negotiated plea agreement, defendantpleaded guilty to one count of murder in the second degree and, in accordance with that agreement,was subsequently sentenced to a prison term of 20 years to life. Defendant, thereafter, moved pursuantto CPL 440.10 (1) (e) and (h) to vacate the judgment of conviction on the ground that her guilty pleawas not knowingly, intelligently and voluntarily entered. Without a hearing, County Court denieddefendant's motion. Defendant appeals and, finding no merit to any of defendant's contentions, we nowaffirm both the judgment of conviction and the order denying her CPL article 440 motion.
Defendant initially argues that due to the existence of certain specific mental health issues, her plea,when entered, was not knowing, intelligent or voluntary. She also claims that [*2]County Court, prior to deciding her postverdict motion, should haveconducted an evidentiary hearing to determine if, in fact, such mental health issues did exist and, if so,what impact they might have had upon her ability to fully and completely understand the proceedings.
Defendant's judgment of conviction could be vacated if it is determined that, at the time she enteredher plea, she was "incapable of understanding or participating in" the proceedings as the result of theexistence of a mental disease or defect (CPL 440.10 [1] [e]; see People v Bennett, 30 AD3d 631, 631 [2006], lv denied 7NY3d 809 [2006]). While psychiatric records produced in support of the motion indicate that, aftersentence was imposed, defendant was diagnosed with posttraumatic stress disorder and found to becognitively impaired due to the existence of a prior head trauma, " 'such a history does not necessarilyrender a defendant incompetent to enter a knowing and voluntary plea' " (People v Harrison, 52 AD3d 969, 970[2008], lv denied 11 NY3d 737 [2008], quoting People v Barclay, 1 AD3d 705, 706 [2003], lv denied 1 NY3d567 [2003]; see People v Mears, 16AD3d 917, 918 [2005]). Nothing in these records indicates that defendant, at the time of her pleaallocution, was incapable of understanding the nature of the underlying proceedings. It is clear from therecord that defendant actively participated in the plea proceedings and not only respondedappropriately to County Court's questions, but also made intelligent inquiries about the process. On twoseparate occasions during her allocution, defendant asked the court for permission to confer with herattorney and specifically instructed her attorney to indicate on the record that she was not waiving herright to appeal. Moreover, when the court asked whether defendant was entering the plea freely andvoluntarily, she answered "with my whole heart, yes, your Honor."
In addition, while defendant acknowledged taking her prescribed medication, she denied that thesedrugs in any way impaired her ability to understand the proceedings or to participate in them. Simplystated, defendant's claim of incompetence stands in stark contrast with her lucid communications withcounsel and County Court during the plea allocution (see People v Harrison, 52 AD3d at 970).Further, while defendant claims that she was not truly aware of the existence of these psychologicalmaladies until after she entered her guilty plea, we see no reason why defendant could not have, withdue diligence, made County Court aware of the existence of these issues prior to the imposition ofsentence (see CPL 440.10 [3] [a]; People v Berezansky, 229 AD2d 768, 771[1996], lv denied 89 NY2d 919 [1996]). Defendant's psychological history, including the factthat she allegedly attempted suicide, was a matter of record long before sentence was imposed. In fact,the incident to which she ascribed many of these difficulties occurred, by defendant's own admission,more than 30 years ago. Accordingly, and despite the fact that her diagnosis of posttraumatic stressdisorder occurred after sentencing, we find no reason why, if defendant's ability to understand theseproceedings was truly compromised, these issues were not brought to the court's attention prior tosentencing. Therefore, we conclude that County Court did not abuse its discretion in denyingdefendant's motion to vacate the judgment of conviction without a hearing and its order should beaffirmed in all respects (see CPL 440.10 [3] [a]).
Defendant next argues that the plea allocution was insufficient because it failed to establish everyelement of the crime of murder in the second degree. We disagree. Specifically, defendant points to thefact that she had difficulty remembering the details of the crime and never specifically stated during herallocution that when she fired the shotgun at her fiancé, she intended to kill him. " '[A] pleaallocution is generally sufficient where, as here, a defendant's affirmative responses to County Court'squestions established the elements of the crimes charged and there is no indication in the record that thevoluntary plea was baseless or improvident' " (People v Quaye, 52 AD3d 1021, 1022 [2008], quoting People vKemp, 288 AD2d 635, 636 [2001]; seePeople v Cain, 24 AD3d 889, 890 [2005], lv denied 7 NY3d 753 [2006]). WhenCounty Court specifically asked defendant if she had fired the shotgun at the victim and did so with theintent to kill him, she responded, "Yes." This exchange came after defendant, on two separateoccasions, asked for permission to confer with her attorney and after her attorney stated to the courtthat defendant was "prepared to admit that on that date, May 22nd, that she intentionally fired a gun atthe deceased and she intended to cause his death." At that point in the proceedings, the court askeddefendant, "[I]s that what happened," and she answered, "Yes." While defendant had some difficultyrecalling all of the details regarding the circumstances surrounding the shooting, none of that ambiguityserved to raise any question that, at the time of her plea, she was admitting not only that she fired theshotgun, but did so with the intent to kill (seePeople v Singletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741 [2008]).
Moreover, in response to defendant's statements that she had not slept for two days prior to theshooting, had consumed a large quantity of sleeping pills as well as alcohol and "wasn't in a very goodframe of mind," County Court informed her that she had the right to present such evidence at trial andthe jury could conclude that, at the time of the shooting, she was so intoxicated that she could not formthe requisite intent to commit the crime of intentional murder. In addition, County Court appropriatelyadvised defendant that by pleading guilty, she was giving up the right to present this evidence and raisethis defense at a trial (see People vNascimento, 47 AD3d 1076, 1076 [2008]; People v Nelson, 46 AD3d 932, 933 [2007], lv denied 10NY3d 814 [2008]; People v Munck, 278 AD2d 662, 663 [2000]).
We also find that County Court was not required to inform defendant during her plea allocutionthat, even though she was not waiving her right to appeal, her guilty plea served to severely limit whatissues could be raised on such an appeal. We decline to find that a court, in such a circumstance, isobligated to specifically advise a defendant that such a plea would "generally preclude[ ] appellatereview of nonjurisdictional defects" even though the right to appeal has not been waived (People vMotley, 69 NY2d 870, 871 [1987]). Moreover, throughout these proceedings, defendant was notonly represented by counsel capable of fully explaining her appellate rights, but she has also failed toidentify any legitimate issue that she has been precluded from raising as a direct result of her guilty plea.
Finally, we find no merit to defendant's claim that the sentence imposed was harsh and excessive.She entered her plea fully aware of the parameters of the sentence that could be imposed and, in fact,received a sentence that was less than the statutory maximum (see Penal Law § 70.00[3] [a] [i]). In addition, our review of the record does not disclose the existence of any extraordinarycircumstance that would warrant a reduction of this sentence in the interest of justice (see CPL470.15 [6]; People v Adams, 47 AD3d968, 969 [2008], lv denied 10 NY3d 761 [2008]).
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur. Ordered that the judgment and orderare affirmed.