| People v Dowling |
| 2012 NY Slip Op 00865 [92 AD3d 1034] |
| February 9, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Edwin C.Dowling II, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered November 23, 2010, which revoked defendant's probation and imposed a sentence ofimprisonment.
In July 2005, defendant was operating a motor vehicle with three passengers when he lostcontrol and struck a boulder, killing one of the passengers. He thereafter pleaded guilty to drivingwhile intoxicated and criminally negligent homicide and was sentenced to five years of probationand 90 days in jail on an intermittent basis. In August 2010, defendant admitted to violating theterms of his probation by failing to report to the Probation Department as directed, being awayfrom home overnight, failing to complete recommended substance abuse treatment, purchasingand consuming alcoholic beverages, entering premises that sell alcoholic beverages, failing toproduce urine samples for drug and alcohol testing and using marihuana. Sentencing wasadjourned for six months to provide defendant another opportunity to successfully complete asubstance abuse treatment program. In September 2010, the Probation Department reported thatdefendant had left the recommended treatment program prior to completing it and that he hadadmitted to being in a bar, but denied drinking alcohol. After further adjournments in order toallow defendant to complete a treatment program proved unsuccessful, County Court revokeddefendant's probation and sentenced him to a prison term of 1 to 3½ years. Defendantappeals and we affirm.[*2]
We reject defendant's contention that County Court erredin not conducting a competency hearing pursuant to CPL 730.30. "A defendant is presumed to becompetent and is not entitled, as a matter of law, to a competency examination unless the courthas reasonable grounds to believe that the defendant, due to some mental disease or defect, isincapable of understanding the proceedings against him or her" (People v Woodard, 17 AD3d 929,930 [2005], lv denied 5 NY3d 811 [2005] [citations omitted]). Although defendantunquestionably suffered a traumatic brain injury in the accident, he gave coherent responses tothe court's inquiries and there is nothing in the record to indicate that he did not understand thecharges against him or was unable to assist in his defense (see id.; People vDaley, 302 AD2d 745, 746 [2003]; People v Martin, 239 AD2d 800, 801 [1997],lv denied 90 NY2d 941 [1997]).
Defendant's argument that his guilty plea to violating the terms of his probation was notvoluntary, knowing or intelligent is unpreserved for our review due to his failure to move towithdraw his plea or vacate his judgment of conviction (see People v Cerone, 75 AD3d 835, 835-836 [2010], lvdenied 15 NY3d 850 [2010]; Peoplev Talmadge, 48 AD3d 836, 836 [2008]). Further, in light of defendant's repeated failureto complete substance abuse treatment, we cannot conclude that County Court's denial ofdefendant's request for a further adjournment of sentencing in order to enroll in another treatmentprogram was an abuse of its discretion (see generally People v Singleton, 41 NY2d 402,405 [1977]). Finally, given defendant's repeated inability to abide by the conditions of hisprobation, we are unpersuaded by defendant's contention that the sentence imposed is harsh orexcessive (see People v Kirk, 87AD3d 1205 [2011]). Nor does our review of the record reveal either an abuse of discretionor extraordinary circumstances warranting a reduction of the sentence in the interest of justice(see People v Walts, 34 AD3d1043, 1044 [2006], lv denied 8 NY3d 850 [2007]).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.