| People v Vandemark |
| 2014 NY Slip Op 03883 [117 AD3d 1339] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Appellant, vKaren Vandemark, Respondent. |
Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of counsel), forappellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April3, 2012 in Albany County, convicting defendant upon her plea of guilty of the crime ofassault in the second degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to assault in thesecond degree in full satisfaction of a four-count indictment arising out of her attack onher elderly, wheelchair-bound stepfather with a baseball bat. She also waived her right toappeal. In accordance with the terms of the plea agreement, County Court thereaftersentenced defendant as a second felony offender to a prison term of six years, followedby five years of postrelease supervision. Defendant appeals.
Defendant's arguments that her plea was not voluntary and that she was not affordedthe effective assistance of counsel are not preserved for our review as the record does notreflect that she made an appropriate postallocution motion (see People v White, 104 AD3d1056, 1056 [2013], lv denied 21 NY3d 1021 [2013]; People v Lopez, 52 AD3d852, 853 [2008]). Also, defendant's contention that Supreme Court abused itsdiscretion in not conducting a competency hearing prior to accepting her guilty plea issimilarly unpreserved (seePeople v Riley, 97 AD3d 982, 983 [2012], lv denied 20 NY3d 935[2012]; People v Rought, 90AD3d 1247, 1248 [2011], lv denied 18 NY3d 962 [2012]). Nor did shemake any statements during the plea colloquy that negated an essential element of thecrime or cast doubt upon her guilt so as to invoke the exception to the preservationrequirement (see People v Rought, 90 AD3d at 1248). Were we to consider hercontentions, in any event, we would find that defendant's plea was knowing andvoluntary. Supreme Court reviewed two competency reports that were conducted fourmonths prior to entry of her guilty plea, both of which concluded that she was competentpursuant to CPL article 730. Defendant made no request for a competency hearing and,during the plea colloquy, she identified the medications she was taking, indicated that shewas able to understand the proceedings and provided coherent and appropriate responsesthroughout the plea colloquy. Additionally, defendant confirmed that she was satisfiedwith the services of her attorney, who was able to secure an advantageous plea agreementfor her. Finally, defendant's claim that the agreed-upon sentence was harsh and excessiveis foreclosed by her waiver of appeal (see People v Graves, 113 AD3d 998, 999 [2014]; People v Young, 100 AD3d1186, 1189 [2012], lv denied 21 NY3d 1021 [2013]).
Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur. Ordered that the judgmentis affirmed.