| People v Sulaiman |
| 2015 NY Slip Op 09126 [134 AD3d 860] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Khemchan Sulaiman, Appellant. |
Leon H. Tracy, Jericho, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Jacqueline Rosenblumand Andrea M. DiGregorio of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Quinn, J.), rendered April 24, 2014, convicting him of attempted murder in the seconddegree, assault in the first degree, assault in the second degree (two counts), aggravatedcriminal contempt (two counts), criminal contempt in the first degree (two counts), andendangering the welfare of a child, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court should have, sua sponte, orderedan additional competency evaluation of the defendant or a second competency hearing iswithout merit. On two separate occasions, the court issued an order of examinationpursuant to CPL 730.30 (1). The psychologist and the psychiatrist designated as thepsychiatric examiners pursuant to those respective orders each found the defendant fit toproceed. A psychiatrist retained by defense counsel to evaluate the defendant prepared areport and did not conclude that the defendant was unfit to proceed. The court conducteda competency hearing and considered the report of the psychiatrist retained by defensecounsel, the reports and testimony of the designated psychiatric examiners, and testimonyof civilian witnesses. Based upon this evidence, the court providently exercised itsdiscretion in determining that the defendant was competent and fit to proceed to trial (see People v Burley, 118 AD3d720, 720 [2014]; People vBennett, 63 AD3d 1086, 1087 [2009]; People v Berry, 45 AD3d 693 [2007]).
The defendant also contends that he was deprived of the effective assistance ofcounsel because his attorney failed to ensure that he was fit to proceed, and did notrequest an adjournment of the competency hearing in order to retain another psychiatristto evaluate him or move for a second competency hearing. The record as a whole revealsthat the defendant received meaningful representation (see People v Jermain, 56 AD3d1165 [2008]; People vFerrer, 16 AD3d 913, 914-915 [2005]; see generally People v Colon, 61 AD3d 772, 773 [2009]),and that counsel's representation did not fall below an objective standard ofreasonableness (see generally Strickland v Washington, 466 US 668, 688[1984]). "[T]here can be no deprivation of effective assistance of counsel arising fromcounsel's failure to make a motion that had little or no chance of success" (People v Shaffer, 81 AD3d989, 990 [2011]).
[*2] The defendant'scontention that his plea of guilty was not knowing, voluntary, and intelligent isunpreserved for appellate review, since he did not move to withdraw the plea (see People v Narbonne, 131AD3d 626, 627 [2015]; People v Epps, 118 AD3d 1018 [2014]; People v Carr, 89 AD3d1033, 1034 [2011]; Peoplev Trent, 74 AD3d 1370 [2010]; People v Hemion, 37 AD3d 616, 616-617 [2007]).Contrary to the defendant's contention, the narrow exception to the preservation rule doesnot apply here (see People vAzor, 124 AD3d 671, 672 [2015]; see also People v Lopez, 71 NY2d662, 666 [1988]). In any event, the plea was knowingly, voluntarily, and intelligentlyentered. The mere fact that the defendant may have had a mental condition did not impairhis ability to make a valid plea (see People v Godfrey, 33 AD3d 623, 624 [2006]; People v Rodriguez, 83 AD3d449 [2011]), and the colloquy between the Supreme Court and the defendant duringthe defendant's allocution did not reveal a reasonable ground to believe that thedefendant lacked the capacity to understand the proceeding against him or to assist in hisown defense (see People vGordon, 107 AD3d 739, 740 [2013]; People v Keiser, 100 AD3d 927, 928-929 [2012]; People v Johnson, 87 AD3d1074 [2011]). The court fully apprised the defendant of the constitutional rightswaived by his plea of guilty, as well as other consequences bearing upon his choice toplead guilty to the charges. The defendant acknowledged his guilt and that he understoodthe implications of his plea, and the facts admitted by the defendant during his pleaallocution were sufficient to support his guilty plea (see People v Booth, 23 AD3d 766, 767 [2005]; People v Briggs, 21 AD3d652, 653 [2005]). Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.