| People v Tyo |
| 2016 NY Slip Op 04605 [140 AD3d 1697] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael J. Tyo, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), renderedMay 5, 2014. The judgment convicted defendant, upon his plea of guilty, of forgery inthe second degree.
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 forgery in the second degree (Penal Law § 170.10 [1]). Contrary todefendant's contention, we conclude that he knowingly, intelligently, and voluntarilywaived his right to appeal as a condition of the plea (see generally People v Lopez, 6 NY3d 248, 256 [2006])."County Court engage[d] the defendant in an adequate colloquy to ensure that the waiverof the right to appeal was a knowing and voluntary choice" (People v James, 71 AD3d1465, 1465 [2010] [internal quotation marks omitted]), and the record establishesthat he "understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (Lopez, 6 NY3d at 256).Defendant's contention with respect to the factual sufficiency of the plea allocution isencompassed by the valid appeal waiver (see People v Thousand, 96 AD3d 1439, 1439-1440 [2012],lv denied 19 NY3d 1002 [2012]).
We conclude that defendant's plea was knowing, voluntary, and intelligentnotwithstanding his erratic behavior at a previous hearing. Nothing on the record of theplea proceeding indicates that defendant lacked the capacity to plead guilty (see People v Hayes, 39 AD3d1173, 1175 [2007], lv denied 9 NY3d 923 [2007]). We reject defendant'scontention that the court sua sponte was required to conduct a hearing to assess hiscompetency to proceed with the criminal action (see CPL 730.30 [2]). Defensecounsel did not request a hearing, and the court was entitled to rely on its ownobservations and the reports of two psychiatric examiners, both of whom founddefendant competent (seePeople v Cipollina, 94 AD3d 1549, 1549-1550 [2012], lv denied 19NY3d 971 [2012]). Contrary to defendant's further contention, the record establishes thathe entered a valid waiver of indictment (see People v Lugg, 108 AD3d 1074, 1074-1075[2013]).
Defendant's contention that the court erred in failing to redact his presentence reportis not preserved for our review. Although defendant noted various alleged errors in thepresentence report at the time of sentencing, he did not move to redact the report orrequest that the court conduct a hearing concerning its accuracy (see People v Jones, 114 AD3d1239, 1242 [2014], lv denied 23 NY3d 1038 [2014], reconsiderationdenied 25 NY3d 1166 [2015]; People v Keiser, 100 AD3d 927, 929 [2012], lv denied20 NY3d 1062 [2013]). We decline to exercise our power to review defendant'scontention as a matter of discretion in the interest of justice (see CPL 470.15 [3][c]).
We reject defendant's additional contention that the court abused its discretion indeclining to order judicial diversion instead of incarceration (see People v Hines, 132 AD3d1385, 1385 [2015], lv denied 26 NY3d 1109 [2016]). The court properlyconsidered the threat defendant posed [*2]to the publicand whether further treatment would likely be successful (see People v Landry, 132AD3d 1351, 1352 [2015], lv denied 26 NY3d 1089 [2015]).Finally, defendant's contention that the sentence is unduly harsh and severe is notencompassed by his valid waiver of the right to appeal inasmuch as the court enhanceddefendant's sentence because of postplea conduct and failed to advise defendant prior tohis waiver " 'of the potential period of incarceration that could be imposed' for anenhanced sentence" (see Peoplev Huggins, 45 AD3d 1380-1381 [2007], lv denied 9 NY3d 1006 [2007];cf. People v Jackson, 34AD3d 1318 [2006], lv denied 8 NY3d 923 [2007]). We conclude, however,that the sentence is not unduly harsh or severe. Present—Smith, J.P., Carni,DeJoseph, Curran and Troutman, JJ.