| People v Winebrenner |
| 2012 NY Slip Op 04895 [96 AD3d 1615] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CyrilWinebrenner, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), renderedMarch 30, 2005. The judgment convicted defendant, upon his plea of guilty, of murder in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of murder inthe first degree (Penal Law § 125.27 [1] [a] [vi]; [b]), defendant contends that CountyCourt abused its discretion in failing, sua sponte, to order a competency examination pursuant toCPL 730.30 (1). In support of his contention, defendant relies on evidence contained in thepresentence report and his sentencing memorandum, both of which were received by the courtafter defendant entered his plea. Before addressing the merits of defendant's contention, we note"that the issue of competency to stand trial may be raised on appeal despite the absence of anyobjection to the . . . court's failure to cause the defendant to be examined"(People v Armlin, 37 NY2d 167, 172 [1975]; see People v Bennefield, 306 AD2d911, 912 [2003]; People v Moore, 203 AD2d 900, 900 [1994], lv denied 84NY2d 830 [1994]; People v Meurer, 184 AD2d 1067, 1068 [1992], lv dismissed80 NY2d 835 [1992], lv denied 80 NY2d 907 [1992]; see also People v Keebler, 15 AD3d 724, 726 [2005], lvdenied 4 NY3d 854 [2005]; People v Frazier, 114 AD2d 1038, 1039 [1985], lvdenied 67 NY2d 883 [1986]). To the extent that our decision in People v Bryant (87 AD3d 1270,1271 [2011], lv denied 18 NY3d 881 [2012]) stated that preservation of such acontention was required, we disavow that statement.
With respect to the merits of defendant's contention, "[i]t is fundamental that the trial of acriminal defendant while he is mentally incompetent violates due process" (People vArnold, 113 AD2d 101, 102 [1985]). The test for competency "is whether the defendant hassufficient present ability to consult with his [or her] lawyer with a reasonable degree of rationalunderstanding—and whether he [or she] has a rational as well as factual understanding ofthe proceedings against him [or her]" (id. [internal quotation marks omitted]), and a courtmay sua sponte order a competency examination at any time before a final judgment is entered(see People v Smyth, 3 NY2d 184, 187 [1957], rearg denied 3 NY2d 942 [1957];see also Armlin, 37 NY2d at 171). "In determining whether a . . . courtshould have invoked the procedures of CPL article 730 and directed an examination and hearingon defendant's competency, the focus is on what the . . . court did in light of what it[*2]knew or should have known of the defendant at any timebefore final judgment . . . The test to be applied has been formulated as follows:'Did the . . . judge receive information which, objectively considered, shouldreasonably have raised a doubt about defendant's competency and alerted [the judge] to thepossibility that the defendant could neither understand the proceedings or appreciate theirsignificance, nor rationally aid his [or her] attorney in [the] defense' " (Arnold, 113 AD2dat 102-103).
We agree with the People that, before the court received the presentence report andsentencing memorandum, there is nothing in this record that would have alerted the court to anyissue concerning defendant's competency. " '[T]here is no indication in the record that defendantwas unable to understand the proceedings or that he was mentally incompetent at the time heentered his guilty plea' " (People vRobinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007]). Thus,any contention that the court should have sua sponte ordered a competency examinationbefore accepting defendant's plea lacks merit.
We further conclude that the evidence contained in the presentence report and sentencingmemorandum did not raise any doubt about defendant's competency at the time of the plea or atthe time of sentencing. Those documents established that, 10 months before the crime and2½ years before the plea, defendant had a 24-hour hospitalization that was allegedly causedby a conversion disorder. At the time of the plea and at sentencing, defendant spoke coherentlyabout his role in the crime and his remorse for his actions. He indicated that he understood thathe was entering a plea of guilty, and he responded appropriately to the court's questions (see People v Majors, 73 AD3d1382, 1382-1383 [2010], lv denied 15 NY3d 775 [2010]; People v Brown, 9 AD3d 884,885 [2004], lv denied 3 NY3d 671 [2004]; People v Murray, 255 AD2d 997[1998], lv denied 93 NY2d 975 [1999]; cf. Arnold, 113 AD2d at 103-104;People v Cartagena, 92 AD2d 901, 901-902 [1983]). The court was able to observedefendant and to interact with him (seePeople v Yu-Jen Chang, 92 AD3d 1132, 1134-1135 [2012]; People v Chicherchia, 86 AD3d953, 954 [2011], lv denied 17 NY3d 952 [2011]), and "defense counsel, who was inthe best position to assess defendant's capacity, did not raise the issue of defendant's fitness toproceed or request an examination pursuant to CPL 730.30 (2)" (Brown, 9 AD3d at 885[internal quotation marks omitted]; see Chicherchia, 86 AD3d at 954).
Defendant further contends that he was denied effective assistance of counsel becausedefense counsel allowed defendant to plead guilty without an adequate inquiry into his mentalstate. We reject that contention. Defendant has "failed to 'demonstrate the absence of strategic orother legitimate explanations' . . . for the absence of a psychiatric . . .defense" (People v Leiva, 59 AD3d161, 162 [2009], lv denied 12 NY3d 818 [2009], quoting People v Rivera,71 NY2d 705, 709 [1988]; see People vWilliams, 41 AD3d 1252, 1254 [2007]; People v Alexander, 266 AD2d 906[1999], lv denied 94 NY2d 916 [2000]), and the record on appeal establishes that defensecounsel attempted to obtain the records related to defendant's hospital admission but had nosuccess. In any event, as the People correctly noted at oral argument of this appeal, defendant'schallenge to defense counsel's investigative efforts "involves matter[s] which [are] dehors therecord and is not properly presented on direct appeal" (People v Miller, 81 AD3d 854, 855 [2011], lv denied 16NY3d 861 [2011]). Present—Scudder, P.J., Centra, Fahey, Peradotto and Sconiers, JJ.