| People v Jenks |
| 2010 NY Slip Op 00408 [69 AD3d 1120] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James A.Jenks, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered September 23, 2008, convicting defendant upon his plea of guilty of thecrime of criminal sexual act in the third degree.
Defendant pleaded guilty to one count of criminal sexual act in the third degree—thetop count in a seven-count indictment—and was sentenced as a second felony offender toa prison term of 2 to 4 years. Defendant claims that the record fails to demonstrate a knowing,voluntary and intelligent plea and waiver of his right to appeal. We disagree.
Initially, we note that defendant's failure to move to withdraw his plea or vacate thejudgment of conviction renders his challenge to the voluntariness and facial sufficiency of hisplea, as well as his claim of ineffective assistance of counsel, unpreserved for our review (see People v Smith, 57 AD3d1237, 1237 [2008]). Moreover, the record contains no actions or statements by defendantthat were inconsistent with his guilt (cf.People v Ramirez, 42 AD3d 671, 672 [2007]). In any event, defendant's claims lackmerit. Defendant's counsel placed the terms of the plea and the bargained-for sentence on therecord and defendant acknowledged his understanding of the plea agreement. Defendant'saffirmative responses to County Court's explanation of the elements of the crime to which he waspleading guilty and the rights that he was and was not waiving (see People v Quaye, 52 AD3d1021, 1022 [2008], lv denied 11 NY3d 834 [2008]), as well as defendant's executionof a written waiver of the right to appeal (see People v Ramos, 7 NY3d 737, 738 [2006]), evince his fullcomprehension of the terms of his guilty plea and appeal waiver. There was no requirement forthe court to "specifically enumerate all the rights to which the defendant was entitled"(People v Harris, 61 NY2d 9, 16 [1983]; see People v Williams, 35 AD3d 971, 972 [2006], lvdenied 8 NY3d 928 [2007]).
County Court properly inquired whether the medication that defendant was taking affectedhis ability to understand the plea proceedings in any way. Defendant denied any impairment andnothing in the record casts doubt on his understanding (see People v Kaszubinski, 55 AD3d 1133, 1135 [2008], lvdenied 12 NY3d 855 [2009]; People v Romano, 45 AD3d 910, 915 [2007], lv denied 10NY3d 770 [2008]; People v McCann, 289 AD2d 703, 704 [2001]). County Court wasnot required to explore defendant's prior mental health history where nothing in the record of theplea proceedings suggested any impairment of defendant's ability to understand the proceedings(see People v Davenport, 58 AD3d 892, 894 [2009], lv denied 12 NY3d 782[2009]; People v Poquee, 9 AD3d781, 783 [2004], lv denied 3 NY3d 741 [2004]; People v Daley, 302 AD2d745, 746 [2003]). For the same reason, defendant's claim of ineffective assistance of counsel,based on counsel's failure to inquire or request an examination into defendant's competency, isunavailing. Nothing in the record suggests that counsel should have had any doubts as todefendant's capacity to understand the plea proceedings.
At sentencing, defendant claimed that he was misled regarding the age of the victim,contradicting his admission during the plea proceedings that he knew the victim was less than 17years old at the time that he had oral sex with her. He also claimed that he would not haveengaged in the conduct if he had not been intoxicated. Defendant now claims that thesestatements imposed a duty upon County Court to inquire as to whether he knew and understoodthat he was waiving a possible defense. Neither of the statements raises a possible defense.Criminal sexual act in the third degree does not have a specific intent element (see PenalLaw § 130.40 [2]; see also Peoplev Newton, 30 AD3d 896, 896 [2006], affd 8 NY3d 460 [2007]), thereforedefendant's intoxication or misunderstanding of the victim's age did not present any defense fordefendant to waive. In sum, nothing in the record suggests that defendant's waiver of appeal andguilty plea were anything other than knowingly, intelligently and voluntarily made.
Defendant's challenge to the sentence imposed as harsh and excessive as well as hischallenges to testimony received at sentencing from his daughter and the order of protectionissued in her favor are not preserved for our review. Were we to consider these arguments, wewould find them to be without merit.
Cardona, P.J., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.