| People v Hawkins |
| 2010 NY Slip Op 01181 [70 AD3d 1389] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherT. Hawkins, Appellant. |
—[*1] Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered April19, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the fourth degree and attempted promoting prison contraband in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, ofcriminal sale of a controlled substance in the fourth degree (Penal Law § 220.34 [1]) andattempted promoting prison contraband in the first degree (§§ 110.00, 205.25 [2]),defendant contends that County Court erred in denying his motion seeking to withdraw his pleaon the ground that he was unable to comprehend the plea proceedings and requesting acompetency examination pursuant to CPL article 730. Although the contentions of defendantimplicate the voluntariness of his plea and thus survive his waiver of the right to appeal (see People v Stoddard, 67 AD3d1055 [2009]; People v Bennefield, 306 AD2d 911 [2003]), we neverthelessconclude that they are without merit.
"[A] defendant is presumed to be competent" (People v Tortorici, 92 NY2d 757, 765[1999], cert denied 528 US 834 [1999]; see People v Wilcox, 45 AD3d 1320 [2007], lv denied 10NY3d 772 [2008]), and "the court is under no obligation to issue an order of examination. . . unless it has [a] 'reasonable ground . . . to believe that thedefendant [is] an incapacitated person' " (People v Morgan, 87 NY2d 878, 880 [1995];see People v Williams, 35 AD3d1273, 1274 [2006], lv denied 8 NY3d 928 [2007]). "The determination of whether toorder a competency hearing lies within the sound discretion of the . . . court"(Tortorici, 92 NY2d at 766; see Morgan, 87 NY2d at 879-880; Williams,35 AD3d at 1274).
Here, the record supports the court's conclusion that defendant's complaints of mental illnesswere invented by defendant in order to avoid the consequences of the plea (see People vPowell, 293 AD2d 423 [2002], lv denied 98 NY2d 700 [2002]; People vWiggins, 191 AD2d 364, 365 [1993], lv denied 81 NY2d 1021 [1993]; People vClickner, 128 AD2d 917, 918-919 [1987], lv denied 70 NY2d 644 [1987]). Indeed,the People presented uncontradicted evidence that defendant feigned mental illness in an attemptto manipulate the criminal justice system (see generally Powell, 293 AD2d 423 [2002];People v Farrell, 184 AD2d 396 [1992], lv [*2]denied80 NY2d 974, 975 [1992]).
Finally, we note that, although the sentence and commitment contains the correct Penal Lawcitation for criminal sale of a controlled substance in the fourth degree, it incorrectly describesthe Penal Law citation as both "CSCS 4th" and "CPCS 4th." The sentence and commitment musttherefore be amended to correct the clerical error and to reflect that defendant was convicted ofcriminal sale of a controlled substance in the fourth degree (see generally People v Saxton, 32 AD3d 1286 [2006]).Present—Scudder, P.J., Centra, Carni and Pine, JJ.