| People v Thomas |
| 2016 NY Slip Op 03902 [139 AD3d 986] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dwight Thomas, Appellant. |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Donald Berk of counsel; MatthewFrankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Spergel, J.), rendered April 2, 2014, convicting him of assault in the first degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he validly waived his right to appeal (see People v Sanders, 25 NY3d337, 341 [2015]; People vLopez, 6 NY3d 248, 257 [2006]). Nevertheless, his contentions concerning thevoluntariness of his plea of guilty survive his appeal waiver (see People vSeaberg, 74 NY2d 1, 10 [1989]; People v Magnotta, 137 AD3d 1303 [2016]). However,this issue is unpreserved for appellate review, since the defendant did not move towithdraw the plea (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Narbonne, 131 AD3d626, 627 [2015]; People vCanole, 123 AD3d 940 [2014]; People v Pryor, 11 AD3d 565, 566 [2004]). In any event,the defendant's plea of guilty was knowing, voluntary, and intelligent. Contrary to thedefendant's contention, there was nothing in the plea allocution that triggered theSupreme Court's duty to inquire into a potential affirmative defense to the charge basedupon mental disease or defect (see Penal Law § 40.15; People vSerrano, 160 AD2d 745, 746 [1990]; cf. People v Grason, 107 AD3d 1015 [2013]). The fact thatthe presentence investigation report indicated that the defendant had been hospitalizedand prescribed medication for schizophrenia did not trigger such a duty of inquiry (see People v Faulknor, 134AD3d 404 [2015]; People vHill, 128 AD3d 1479, 1480 [2015]). Moreover, there is no support in the recordfor the defendant's contention that he lacked the capacity to understand the proceedingsagainst him or that he was unable to assist in his defense (see CPL 730.30 [1];People v Narbonne, 131 AD3d at 627; People v Kelly, 121 AD3d 713 [2014]; People v M'Lady, 59 AD3d568 [2009]; People v Parker, 191 AD2d 717 [1993]; People v Helm,178 AD2d 656 [1991]). To the contrary, the defendant's responses at the plea andsentencing proceedings were appropriate, and did not indicate that he was incapacitated(see People v M'Lady, 59 AD3d at 568; People v Pryor, 11 AD3d at 566).Under these circumstances, the Supreme Court was not required to sua sponte direct acompetency examination pursuant to CPL 730.30 (see People v Monk, 29 AD3d 605 [2006]; People v Eherts, 21 AD3d905, 906 [2005]; People v Graham, 272 AD2d 479, 479-480 [2000]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that he was deprived of the effective assistance of counsel except to the extentthat the [*2]alleged ineffective assistance affected thevoluntariness of his plea (seePeople v Upson, 134 AD3d 1058 [2015]; People v Haywood, 122 AD3d 769, 769-770 [2014]).Insofar as the defendant contends that his counsel's conduct affected the voluntariness ofthe plea, the claim is based, in part, on matter appearing on the record and, in part, onmatter outside the record, and thus constitutes a "mixed claim" of ineffective assistance(People v Maxwell, 89AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). In thiscase, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claimof ineffective assistance cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People vFreeman, 93 AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d603, 604 [2011]). Balkin, J.P., Dickerson, Sgroi and Maltese, JJ., concur.