| People v Ortiz |
| 2009 NY Slip Op 03635 [62 AD3d 1034] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v FranciscoOrtiz, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered March 28, 2003, convicting defendant upon his plea of guilty of twocounts of the crime of rape in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with two counts of the crime of rape in the second degree. Defendant pleadedguilty to both counts and was sentenced pursuant to the plea agreement to a term ofimprisonment of 2 to 6 years on each count, with the sentences to run concurrently. On thisappeal, defendant argues that County Court erred by failing to order a competency evaluation onits own motion. We do not agree.
"[A] defendant is presumed to be competent and is not entitled, as a matter of law, to acompetency hearing unless the court has reasonable grounds to believe that, because of mentaldisease or defect, [he] is incapable of assisting in his . . . own defense or ofunderstanding the proceedings against him" (People v Surdis, 23 AD3d 841, 843 [2005], lv denied 6NY3d 818 [2006] [internal quotation marks and citations omitted]; see People v Sebast, 32 AD3d615, 615-616 [2006], lv denied 7 NY3d 870 [2006]). Here, although a presentenceevaluation report indicated that defendant is mildly mentally retarded, in light of defendant'slucid and coherent responses to County Court's inquiries during allocution as well as assurancesby both defendant [*2]and his counsel that defendant fullyunderstood the plea proceedings, we find that the court did not abuse its discretion in failing toorder a competency hearing sua sponte (see People v Borom, 55 AD3d 1041, 1041-1042 [2008]; Peoplev Surdis, 23 AD3d at 843; People vKron, 8 AD3d 908, 909 [2004], lvs denied 3 NY3d 708, 758 [2004]; Peoplev Reynolds, 290 AD2d 591, 591-592 [2002]).
Peters, Lahtinen, Kane and McCarthy, JJ., concur. Ordered that the judgment is affirmed.