| People v Coons |
| 2010 NY Slip Op 04285 [73 AD3d 1343] |
| May 20, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David A.Coons, Appellant. |
—[*1]
Lahtinen, J. Appeal from a judgment of the Supreme Court (Sise, J.), rendered January 9,2009 in Schenectady County, convicting defendant upon his plea of guilty of the crime ofburglary in the third degree (three counts).
Defendant was charged with various crimes in three separate indictments. In May 2008,following the People's successful motion to consolidate the indictments, defendant agreed toplead guilty to three counts of burglary in the third degree. In June 2008, when the presentenceinvestigation report indicated that defendant had apparently attempted suicide during aninterview with a probation officer, Supreme Court adjourned sentencing and ordered acompetency examination pursuant to CPL article 730. As a result of that examination, defendantwas found to be an incapacitated person by both examining psychiatrists. Neither party requesteda CPL article 730 competency hearing at that time and defendant was thereafter remanded to amental health facility for treatment. In November 2008, defendant was found to be fit to proceedand, in January 2009, after reaffirming his guilty plea, defendant was sentenced pursuant to theplea agreement as a persistent felony offender to a prison term of 15 years to life. Defendant nowappeals.
We affirm. Defendant's sole claim on appeal is that, inasmuch as he was found to be [*2]incompetent subsequent to the date of his plea, he should bepresumed to have been incompetent at the time of his plea and, therefore, Supreme Court erredin accepting the plea without ordering a CPL article 730 competency hearing. Initially, we notethat as defendant's claim challenges the voluntariness of his plea, it is not preserved for ourreview due to his failure to move to withdraw his plea or vacate his judgment of conviction (see People v Dantzler, 63 AD3d1376, 1377 [2009], lv denied 14 NY3d 799 [2010]; People v Sorey, 55 AD3d 1063,1064 [2008], lv denied 11 NY3d 930 [2009]). Moreover, the narrow exception to thepreservation requirement is inapplicable here as defendant made no statements during allocutionthat were inconsistent with his guilt or otherwise called into question the voluntariness of hisplea (see People v Bethel, 69 AD3d1126, 1127 [2010]).
In any event, regarding defendant's competency, it is well settled that "[a] defendant ispresumed to be competent and is not entitled, as a matter of law, to a competency hearing unlessthe court has reasonable grounds to believe that, because of mental disease or defect, thedefendant is incapable of assisting in his or her own defense or of understanding the proceedingsagainst him [or her]" (People v Planty, 238 AD2d 806, 807 [1997], lv denied 89NY2d 1098 [1997]; accord People vTrotter, 28 AD3d 947, 948 [2006], lv denied 7 NY3d 764 [2006]). Based uponour review of the record, we find that defendant actively participated in his own defense and,although he stated that he was taking various medications for mental illness at the time of hisplea, Supreme Court confirmed that the medications did not affect his ability to understand theproceedings and the record does not reflect that defendant lacked the capacity to enter a knowingand voluntary plea (see People v Sorey, 55 AD3d at 1064). Further, a determination thatdefendant was incapacitated subsequent to his plea is not evidence that defendant wasincapacitated at the time of his plea (see generally People v Gelikkaya, 84 NY2d 456,459-460 [1994]; People v Pena, 251 AD2d 26, 30-31 [1998]). As there is nothing in therecord to indicate that defendant lacked the capacity to enter a knowing and voluntary guiltyplea, we conclude that Supreme Court did not abuse its discretion in accepting the plea withoutordering a CPL article 730 competency hearing. Finally, we note that once defendant was foundto be fit to proceed, he did not request a CPL article 730 competency hearing or move towithdraw his guilty plea; rather, he reaffirmed his plea prior to sentencing.
Cardona, P.J., Mercure, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.