| People v Budwick |
| 2011 NY Slip Op 02080 [82 AD3d 1447] |
| March 24, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph J.Budwick, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), forrespondent.
McCarthy, J. Appeals from two judgments of the County Court of Essex County (Meyer, J.),rendered December 2, 2008, convicting defendant upon his pleas of guilty of the crimes ofrobbery in the first degree and attempted burglary in the third degree.
Defendant was charged in two indictments with various crimes. He simultaneously pleadedguilty to robbery in the first degree in satisfaction of one indictment and attempted burglary in thethird degree in satisfaction of the other, and waived his right to appeal. County Court thereaftersentenced defendant, as a second felony offender, to an aggregate prison term of 20 years to befollowed by postrelease supervision of five years. Defendant now appeals.
We affirm. Defendant contends that his appeal waivers and guilty pleas were involuntarygiven his history of psychological problems. With regard to the former, County Court explainedthe ramifications of an appeal waiver, which defendant stated he understood. Defendant thenconsulted with counsel and executed detailed written appeal waivers for each indictment. Assuch, we conclude that defendant knowingly, voluntarily and intelligently waived his right toappeal (see People v Winters, 73AD3d 1277, 1278 [2010], lv denied 15 NY3d 811 [2010]).
Defendant's related claim that County Court erred in failing to conduct a competency [*2]hearing survives his appeal waivers to the extent that it implicatesthe voluntariness of his guilty pleas, but is unpreserved due to his failure to move to withdraw hisguilty pleas or vacate the judgments of conviction (see People v Stoddard, 67 AD3d 1055, 1055 [2009], lvdenied 14 NY3d 806 [2010]). Regardless, defendant is presumed to be competent, and hishistory of psychiatric problems alone does not call his competence into question (see People vTortorici, 92 NY2d 757, 765 [1999], cert denied 528 US 834 [1999]; People vWinters, 73 AD3d at 1277). Inasmuch as defendant gave "lucid and coherent responses"throughout the detailed plea colloquy, and County Court obtained assurances that defendantunderstood the proceedings and was competent to proceed, County Court did not abuse itsdiscretion by not ordering a competency hearing sua sponte (People v Ortiz, 62 AD3d 1034, 1035 [2009]; see People vWinters, 73 AD3d at 1277).
Finally, as defendant was aware of his sentencing exposure and that no specific sentencingcommitment had been made, his challenge to the sentences imposed as harsh and excessive isprecluded by his valid appeal waivers (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Gibson, 30 AD3d 777,778 [2006]).
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgments areaffirmed.