| People v Majors |
| 2010 NY Slip Op 04466 [73 AD3d 1382] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lamar L.Majors, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Daley, J.),rendered September 4, 2007, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the second degree.
In full satisfaction of a five-count indictment, defendant pleaded guilty to the crime ofattempted robbery in the second degree. Pursuant to the plea agreement, defendant was to besentenced, as a second felony offender, to a term of four years in prison, to be followed by fiveyears of postrelease supervision. County Court admonished defendant that if he was arrestedwhile out on bail awaiting sentencing, then it would not be bound by the plea agreement andcould impose a harsher sentence than that initially agreed upon. Prior to sentencing, defendantwas arrested on various charges and County Court thereafter sentenced defendant to a prisonterm of 4½ years, to be followed by five years of postrelease supervision. Defendant'ssubsequent CPL article 440 motion to vacate the judgment of conviction was denied and he wasdenied permission to appeal that order. He now appeals from the judgment of conviction and weaffirm.
Defendant contends that County Court erred in accepting his guilty plea without firstordering a competency examination pursuant to CPL article 730. In that regard "[a] defendant ispresumed to be competent and is not entitled, as a matter of law, to a competency hearing unless[*2]the court has reasonable grounds to believe that, because ofmental disease or defect, the defendant is incapable of assisting in his or her own defense or ofunderstanding the proceedings against him [or her]" (People v Planty, 238 AD2d 806,807 [1997], lv denied 89 NY2d 1098 [1997]; see People v Surdis, 23 AD3d 841, 843 [2005], lv denied 6NY3d 818 [2006]). Notably, "[a] trial court is not required to hold a CPL article 730 hearingsimply because a defendant has a history of mental illness" (People v Barclay, 1 AD3d 705, 706 [2003], lv denied 1NY3d 567 [2003]; see People vHarrison, 52 AD3d 969, 970 [2008], lv denied 11 NY3d 737 [2008]). Here,despite evidence that defendant suffers from mental illness, the record reflects that defendantparticipated in the plea colloquy, intelligently answered County Court's questions and indicatedthat he understood the proceedings and the consequences of his guilty plea. As there is nothingin the record to indicate that defendant lacked the capacity to assist in his defense or understandthe proceedings, we conclude that it was not an abuse of discretion for County Court to acceptdefendant's plea without ordering a competency hearing (see People v Surdis, 23 AD3dat 843; People v Stonis, 246 AD2d 911, 911-912 [1998], lv denied 92 NY2d 883[1998]). Further, under these circumstances, and in light of the favorable plea agreementnegotiated by counsel, we also reject defendant's argument that he was denied the effectiveassistance of counsel due to defense counsel's failure to request a CPL article 730 competencyhearing (see People v Harrison, 52 AD3d at 970-971; People v Barclay, 1 AD3dat 706-707).
Finally, defendant's claim that County Court improperly enhanced his sentence is notpreserved for review due to his failure to object at the time of the enhanced sentence or to moveto withdraw his plea or vacate the judgment of conviction on this ground (see People v Haynes, 14 AD3d789, 790-791 [2005], lv denied 4 NY3d 831 [2005]; People v Perkins, 291AD2d 925, 926 [2002], lv denied 98 NY2d 654 [2002]). In any event, given CountyCourt's clear warning that it could impose a harsher sentence if defendant was arrested whileawaiting sentence and defendant's failure to contest the validity of the postplea arrests, weconclude that the enhancement of defendant's sentence was appropriate (see People v Perez, 35 AD3d1030, 1031-1032 [2006], lv denied 9 NY3d 868 [2007]).
Peters, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.