| People v Bryant |
| 2011 NY Slip Op 06663 [87 AD3d 1270] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ThomasBryant, Appellant. |
—[*1] Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered April9, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted promotingprison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00,205.25 [2]). Contrary to defendant's contention, he knowingly, intelligently and voluntarilywaived his right to appeal as a condition of the plea bargain (see generally People v Lopez, 6 NY3d 248, 256 [2006]). "CountyCourt engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right toappeal was a knowing and voluntary choice" (People v James, 71 AD3d 1465, 1465 [2010] [internal quotationmarks omitted]), and the record establishes that defendant " 'understood that the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea of guilty' " (People v Dunham, 83 AD3d 1423,1424 [2011], quoting Lopez, 6 NY3d at 256).
Defendant further contends that the court abused its discretion in denying his motion towithdraw his Alford plea. Although that contention " 'survives his waiver of the right toappeal to the extent that [it] implicates the voluntariness of the plea' " (People v Dash, 74 AD3d 1859,1860 [2010], lv denied 15 NY3d 892 [2010]; see People v Toliver, 82 AD3d 1581 [2011]), we conclude that it iswithout merit. "The contention of defendant that his plea was involuntary because he wascoerced by [correctional facility personnel] is belied by his responses to the court's questionsduring the plea colloquy, indicating that he was pleading guilty voluntarily and that no threats orpromises had induced the plea" (Toliver, 82 AD3d at 1582). Defendant's challenge to thefactual sufficiency of the plea allocution is encompassed by the valid waiver of the right toappeal and is unpreserved for our review inasmuch as he did not move to withdraw the plea or tovacate the judgment of conviction on that ground (see People v McCarthy, 83 AD3d 1533, 1534 [2011]). In any event,defendant's challenge lacks merit inasmuch as there is no requirement that an Alford pleacontain a recitation of " 'every essential element' " of the crime (People v Hill, 16 NY3d 811, 814[2011]).[*2]
The further contention of defendant that the court erred infailing sua sponte to conduct a competency hearing pursuant to CPL 730.30 (2) is notencompassed by his valid waiver of the right to appeal to the extent that it implicates thevoluntariness of the plea (see People vStoddard, 67 AD3d 1055 [2009], lv denied 14 NY3d 806 [2010]). Thatcontention, however, is unpreserved for our review inasmuch as defendant failed to move towithdraw the plea or to vacate the judgment of conviction on that ground (see id.). In anyevent, defendant's contention lacks merit. The court issued an order of examination pursuant toCPL 730.30 (1), and both psychiatric examiners who evaluated defendant concluded that he wascompetent to proceed. It "is well settled that a defendant is not entitled, as a matter of right, tohave the question of his capacity to stand trial passed upon . . . if the court issatisfied from the available information that there is no proper basis for questioning thedefendant's sanity" (People v Mills,28 AD3d 1156, 1156-1157 [2006], lv denied 7 NY3d 903 [2006] [internal quotationmarks omitted]; see CPL 730.30 [2]; People v Morgan, 87 NY2d 878, 880[1995]). " 'Moreover, it is noted that defense counsel . . . was in the best position toassess defendant's capacity and request an examination pursuant to CPL 730.30 (2)' " (People v Jermain, 56 AD3d 1165,1165 [2008], lv denied 11 NY3d 926 [2009]). Here, defense counsel did not request acompetency hearing but, rather, he informed the court that defendant had received medication,understood the proceedings and was able to participate in his own defense (see id.; People v Loria, 12 AD3d 1125[2004], lv denied 4 NY3d 746 [2004]). Defendant further contends that he was deniedeffective assistance of counsel based on the failure of defense counsel to request a competencyhearing. To the extent that defendant's contention survives the plea and waiver of the right toappeal (see People v Gimenez, 59AD3d 1088 [2009], lv denied 12 NY3d 816 [2009]; cf. People v Burke, 256AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]), we conclude that it is lacking inmerit (see generally People v Ford, 86 NY2d 397, 404 [1995]). "[T]here is no indicationin the record that defendant was unable to understand the proceedings or that he was mentallyincompetent at the time he entered his [Alford] plea . . . , and [t]here can beno denial of effective assistance of . . . counsel arising from [defense] counsel'sfailure to make a motion or argument that has little or no chance of success" (People v Jorge N.T., 70 AD3d1456, 1457 [2010], lv denied 14 NY3d 889 [2010]).
Finally, defendant's challenge to the severity of the sentence is encompassed by the validwaiver of the right to appeal (see Lopez, 6 NY3d at 255-256; People v Hidalgo,91 NY2d 733, 737 [1998]). Present—Scudder, P.J., Centra, Fahey, Green and Gorski, JJ.