| People v Gomez |
| 2010 NY Slip Op 03181 [72 AD3d 1337] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JoselitoGomez, Appellant. |
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Egan Jr., J. Appeal from a judgment of the County Court of Greene County (Pulver, Jr., J.),rendered September 18, 2007, convicting defendant upon his plea of guilty of the crime ofattempted bribery in the third degree.
Defendant, a prison inmate, was charged with bribery in the third degree and promotingprison contraband in the second degree. Pursuant to a plea agreement, defendant waived his rightto appeal and pleaded guilty to attempted bribery in the third degree in satisfaction of thecharges. Defendant was thereafter sentenced as a second felony offender to the agreed-upon termof 1½ to 3 years in prison, with the sentence to be served consecutively to the one he wasthen serving for murder in the second degree. Defendant now appeals.
We affirm. Initially, as defendant did not move to withdraw his plea or to vacate thejudgment of conviction, his claims that his plea was not voluntarily entered and that he wasdenied the effective assistance of counsel are not preserved for our review (see People v Dixon, 66 AD3d1237, 1237 [2009], lv denied 13 NY3d 906 [2009]; People v Dantzler, 63 AD3d 1376,1377 [2009]). In any event, we would find, based upon our review of the transcript of the pleaproceedings, that defendant's guilty plea was entered knowingly, voluntarily and intelligently.Although defendant informed County Court that he was taking prescription medication at the[*2]time of his plea, the court properly inquired as to whether themedication impaired his ability to understand the proceedings. Defendant's responses establishedthat defendant understood his rights, the terms of the plea agreement and the nature of theproceedings and that the medication did not affect his ability to render a knowing and voluntaryplea (see People v Perry, 50 AD3d1244, 1245 [2008], lv denied 10 NY3d 963 [2008]; People v Dalton, 47 AD3d 1010,1011 [2008]; People v Johnson, 243 AD2d 997, 998 [1997], lv denied 91 NY2d927 [1998]). Further, the fact that the medication was apparently used to treat a mental illnessdid not compel County Court to conduct a CPL article 730 hearing to determine defendant'scompetency prior to accepting his plea. "A trial court is not required to hold a CPL article 730hearing simply because a defendant has a history of mental illness, and such history does notnecessarily render a defendant incompetent to enter a knowing and voluntary plea" (People v Barclay, 1 AD3d 705,706 [2003] [citations omitted], lv denied 1 NY3d 567 [2003]). In light of defendant'sresponses to the court's inquiries as to his ability to understand the proceedings, we find no abuseof discretion in the court's acceptance of the plea without holding a competency hearing (see People v Harrison, 52 AD3d969, 970 [2008], lv denied 11 NY3d 737 [2008]; People v Kron, 8 AD3d 908, 909 [2004], lv denied 3NY3d 758 [2004]; People v Barclay, 1 AD3d at 706). For the same reasons, defendant'sclaim of ineffective assistance of counsel, based upon counsel's failure to request a competencyhearing, is also unavailing (see People vGambaccini, 2 AD3d 1065, 1066 [2003], lv denied 2 NY3d 739 [2004]).Petitioner's remaining contentions have been examined and found to be without merit.
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.