| People v Klages |
| 2011 NY Slip Op 08845 [90 AD3d 1149] |
| December 8, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Harry E.Klages II, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 10, 2009, convicting defendant upon his plea of guilty of thecrime of assault in the first degree (two counts).
In July 2008, an indictment was filed charging defendant with attempted murder in the firstdegree and six counts of assault in the first degree in connection with an allegation that hetortured and dismembered the victim in an apartment located in the Village of Massena, St.Lawrence County. Specifically, on January 31, 2008, police received a complaint regarding astabbing and responded to the apartment. When they arrived, defendant answered the door of theapartment covered with blood over his entire person and, inside, the police found the victimseverely injured with numerous stab wounds to his groin, eyes and legs, his penis had been cutoff and one eye had been forcibly removed from its socket.
Defendant filed a notice of intent to present psychiatric evidence (see CPL 250.10),but later agreed to plead guilty to two counts of assault in the first degree, in return for a 19-yearsentence on each count, to be served consecutively, plus five years of postrelease supervision andrestitution. He was later sentenced in accord with this plea agreement, and ordered to payapproximately $157,000 in restitution in connection with the medical expenses incurred by thevictim as a result of the injuries sustained in the assault. Defendant now appeals.[*2]
Initially, we note that defendant was never expresslyadvised during his plea allocution or in writing that his "right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" and, therefore, we find that thewaiver of his right to appeal was invalid (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Mosher, 79 AD3d1272, 1273 [2010], lv denied 16 NY3d 834 [2011]). However, inasmuch asdefendant never moved to withdraw his guilty plea or to vacate the judgment of conviction, hisclaims challenging the factual sufficiency and voluntariness of his plea are unpreserved for ourreview (see People v Louree, 8NY3d 541, 545 [2007]; People vDaniels, 86 AD3d 861 [2011]; People v Budwick, 82 AD3d 1447, 1448 [2011], lv denied17 NY3d 857 [2011]). Moreover, nothing said by defendant during his plea allocution served toraise any question as to his guilt or voluntariness of his plea and, thus, the exception to thepreservation rule does not apply (see People v Daniels, 86 AD3d at 861; People v Good, 83 AD3d 1124,1125 [2011], lv denied 17 NY3d 816 [2011]; People v Harris, 82 AD3d 1449, 1449 [2011]).
Similarly, his contention that County Court should have ordered a psychological examinationto determine his competency is also unpreserved (see People v Stoddard, 67 AD3d 1055, 1055 [2009], lvdenied 14 NY3d 806 [2010]). Also, a criminal defendant is presumed competent to standtrial (see People v Budwick, 82 AD3d at 1448) and "the decision to order such anexamination lies within the sound discretion of the trial court and must be based on reasonablegrounds to believe that the defendant lacks capacity to stand trial" (People v Borom, 55 AD3d 1041,1041 [2008]; see CPL 730.30 [1]). Here, defendant did not challenge his competency orsuggest that he was unable to understand the nature of the proceedings or the charges that hadbeen filed against him. In fact, he fully participated in the proceedings, writing two letters to thecourt on his own behalf in which—in a reasonable and intelligent manner—hediscussed the proceedings and voiced his concerns regarding his prosecution. While we areobviously aware of the horrendous nature of the crimes for which defendant stands convicted, aswell as his history of mental illness, we do not find, given all that was before County Court at thetime defendant entered his plea, that it erred by not ordering a psychiatric examination todetermine defendant's competency (see People v Borom, 55 AD3d at 1041; PeopleRichardson, 275 AD2d 864, 865 [2000], lv denied 95 NY2d 937 [2000]). Thisconclusion is reinforced by the intelligent and coherent responses that defendant gave to the courtduring the plea allocution, in which he stated that his medication did not interfere with his abilityto understand the proceedings and gave no indication that he did not fully appreciate theconsequences of entering a guilty plea to some of the charges contained in the indictment.
We also find that defendant's challenge to the restitution ordered by County Court is notpreserved because he failed to request a hearing and did not object to the amount of restitutionordered by the court at the time it imposed sentence (see People v Horne, 97 NY2d 404,414 n 3 [2002]; People v Thomas,71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893 [2010]). Finally, for obviousreasons, and given the nature of these crimes and defendant's prior criminal record, we see noreasonable basis to modify the sentence imposed by County Court (see People v Flint, 66 AD3d 1245,1246 [2009]; see also People vSantos, 63 AD3d 1280 [2009]). Defendant's remaining contentions have been reviewedand found to be without merit.
Mercure, A.P.J., Peters, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed.