| People v Tracy |
| 2015 NY Slip Op 01352 [125 AD3d 1517] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWilliam C. Tracy, Appellant. |
Adam H. Van Buskirk, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered September 5, 2013. The judgment convicted defendant, upon his plea of guilty,of rape in the third degree (four counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of four counts of rape in the third degree (Penal Law § 130.25 [2])and one count of endangering the welfare of a child (§ 260.10 [1]). CountyCourt did not abuse its discretion in denying defendant's motion to withdraw his guiltyplea on the ground that, as the result of his mental illness and use of psychiatricmedication, the plea was not voluntarily, knowingly, and intelligently entered (seegenerally People v Fiumefreddo, 82 NY2d 536, 543-544 [1993]). The recordsupports the court's conclusion that defendant's "plea was knowing, voluntary andintelligent, and that his psychiatric condition and medications did not undermine hisability to understand the terms and consequences of his guilty plea" (People v Mack, 90 AD3d1317, 1321 [2011]).
The court also properly refused to suppress defendant's statement to the police on theground that he was impaired by medication during the interrogation and thus did notvalidly waive his Miranda rights. The evidence at the suppression hearingsupports the court's determination that defendant effectively waived his Mirandarights, including the right to counsel (see People v Twillie, 28 AD3d 1236, 1237 [2006], lvdenied 7 NY3d 795 [2006]). Contrary to defendant's contention, the record does notestablish that "he was under the influence of medication at the time he waived thoserights 'to the degree of mania, or of being unable to understand the meaning of hisstatement[ ]' " (People vDasher, 109 AD3d 1125, 1125 [2013], lv denied 22 NY3d 1040 [2013],quoting People v Schompert, 19 NY2d 300, 305 [1967], cert denied 389US 874 [1967]).
We reject defendant's contention that the court erred in failing, sua sponte, to appointnew counsel to represent defendant on his motion to withdraw the guilty plea. Contraryto defendant's contention, defense counsel did not take a position adverse to defendantwith respect to that motion (seePeople v Wolf, 88 AD3d 1266, 1268 [2011], lv denied 18 NY3d 863[2011]). Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Peradotto, Carni, Sconiers and DeJoseph, JJ.