| People v McFarren |
| 2011 NY Slip Op 02968 [83 AD3d 1209] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JimmyMcFarren, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Devin J. Anderson of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered July 17, 2009, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
In a four-count indictment returned against defendant and a codefendant, defendant wascharged with criminal possession of a controlled substance in the third degree and criminal saleof a controlled substance in the third degree. Pursuant to a plea agreement, defendant pleadedguilty to criminal possession of a controlled substance in the third degree and waived his right toappeal. County Court thereafter sentenced defendant to the agreed-upon sentence of three yearsin prison, to be followed by three years of postrelease supervision. Defendant now appeals andwe affirm.
Defendant's contention that his plea was not voluntarily, knowingly and intelligently entereddue to mental incompetency survives his waiver of the right to appeal but is unpreserved for ourreview due to his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Coons, 73 AD3d1343, 1344 [2010], lv denied 15 NY3d 803 [2010]; People v Dantzler, 63 AD3d 1376,1377 [2009], lv denied 14 NY3d 799 [2010]). Moreover, defendant did not make anystatements during the allocution that negated an essential element of the crime or otherwise castdoubt upon his guilt so as to trigger the exception to the preservation [*2]requirement (see People v McKenzie, 66 AD3d 1056, 1057 [2009]; People v Dixon, 62 AD3d 1214,1214 [2009], lv denied 13 NY3d 743 [2009]). In any event, the record does not reflectthat defendant lacked the capacity to enter a voluntary, knowing and intelligent plea. Althoughdefendant informed County Court that he had previously suffered a brain injury in a motorvehicle accident, the court confirmed that defendant understood the proceedings and was able toclearly communicate with counsel, and he affirmed that there was nothing mentally or physicallycompromising his ability to enter a knowing plea. Accordingly, we would also conclude thatCounty Court did not abuse its discretion by accepting defendant's plea without holding a CPLarticle 730 competency hearing (seePeople v Sorey, 55 AD3d 1063, 1064 [2008], lv denied 11 NY3d 930 [2009]).
Defendant's claim that he was deprived of the effective assistance of counsel by counsel'sfailure to request a CPL article 730 competency hearing, although not precluded by his appealwaiver as it relates to the voluntariness of his plea, is similarly unpreserved for our review due tohis failure to move to withdraw his plea or vacate the judgment of conviction (see People v Glynn, 73 AD3d1290, 1291 [2010]; People vDobrouch, 59 AD3d 781, 781 [2009], lv denied 12 NY3d 853 [2009]).Inasmuch as there is nothing in the record to indicate to counsel that defendant lacked thecapacity to understand the proceedings, we would find defendant's claim to be unavailing (see People v Lafoe, 75 AD3d 663,664 [2010], lv denied 15 NY3d 953 [2010]; People v Jenks, 69 AD3d 1120, 1122 [2010], lv denied 14NY3d 841 [2010]). Finally, defendant's contention that his sentence was harsh and excessive isprecluded by his appeal waiver (seePeople v Peterkin, 77 AD3d 1017, 1018 [2010]).
Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.