| People v Keiser |
| 2012 NY Slip Op 08036 [100 AD3d 927] |
| November 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidKeiser, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (T. Dolan,J.), rendered April 12, 2007, convicting him of attempted criminal sexual act in the first degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
As a threshold matter, the defendant's written waiver of his right to appeal was not valid,because the County Court did not ensure that he "understood the valued right [he] wasrelinquishing" (People v Lopez, 6NY3d 248, 257 [2006]; People vElcine, 43 AD3d 1176, 1177 [2007] [internal quotation marks omitted]). A detailedwritten waiver can supplement a court's on-the-record explanation of what a waiver of the rightto appeal entails, but a written waiver "does not, standing alone, provide sufficient assurance thatthe defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as acondition of the plea agreement" (Peoplev Bradshaw, 76 AD3d 566, 569 [2010], affd 18 NY3d 257 [2011]). Here, theCounty Court did not mention the appellate waiver during its inquiry of the defendant prior to hisplea allocution and merely stated, only after the defendant pleaded guilty, that it would defer thewaiver until sentencing. Accordingly, the defendant's written waiver of the right to appeal wasnot valid.
We reject the defendant's argument that he lacked capacity to enter a plea of guilty. CPL730.30 (1) states: "At any time after a defendant is arraigned upon an accusatory instrument otherthan a felony complaint and before the imposition of sentence, or at any time after a defendant isarraigned upon a felony complaint and before he is held for the action of the grand jury, thecourt wherein the criminal action is pending must issue an order of examination when it is of theopinion that the defendant may be an incapacitated person" (emphasis added). An"[i]ncapacitated person" is a person "who as a result of mental disease or defect lacks capacity tounderstand the proceedings against him or to assist in his own defense" (CPL 730.10 [1]). Adefendant is presumed competent and the court is not required to issue an order of examinationunless there exists a reasonable ground to believe that the defendant was an incapacitated person(see People v Morgan, 87 NY2d 878, 880 [1995]). The presumption of capacity is notrebutted by a mere showing that the defendant has a history of mental illness (see People v Bilal, 79 AD3d 900,902 [2010]).[*2]
At the plea proceeding in this case, the defendant, inresponse to an inquiry by the County Court, indicated that the medications he was taking affectedhis thought process or ability to understand the proceedings. The court engaged in a furthercolloquy with him, and his attorney declared that the defendant rationally approached the pleadecision. Moreover, the court observed the defendant and noted that he appeared lucid andresponsive. Thus, the County Court inquired into the defendant's competence to proceed, andmade a concurrent determination of his capacity prior to accepting his plea of guilty. Thecolloquy between the defendant and the County Court did not reveal a reasonable ground tobelieve that the defendant lacked the capacity to understand the proceeding against him or toassist in his own defense. Accordingly, the court did not err in accepting the defendant's plea ofguilty (see CPL 730.10 [1]; People v Armlin, 37 NY2d 167, 168 [1975]; cf. People v Galea, 54 AD3d 686,688 [2008]).
Contrary to the defendant's contention, the County Court properly, in effect, imposed a$1,000 supplemental sex offender victim fee (see Penal Law § 60.35 [1] [b]). Inaddition, although the defendant argues that the County Court improperly failed to rule on hisobjections to certain alleged inaccuracies in the presentence report, he failed, prior to sentencing,to move to have the report corrected (see People v Skinner, 261 AD2d 490 [1999]) or toseek an adjournment for the preparation of a new report (see People v Karlas, 208 AD2d767 [1994]).
The County Court did not err in failing to warn the defendant of the Sex OffenderRegistration Act (Correction Law art 6-C) consequences of his plea since sex offenderregistration is a collateral consequence of a plea of guilty (see People v Gravino, 14 NY3d 546 [2010]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 86[1982]). Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.