| People v Schreiner |
| 2016 NY Slip Op 04742 [140 AD3d 1399] |
| June 16, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert S. Schreiner, Appellant. |
Mark Gaylord, Schenectady, for appellant.
James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schoharie County (BartlettIII, J.) rendered September 11, 2013, convicting defendant upon his plea of guilty of thecrime of criminal sexual act in the first degree (two counts).
On September 11, 2013, in satisfaction of a 12-count indictment, defendant, a formerschool counselor, pleaded guilty to two counts of criminal sexual act in the first degreeand waived his right to appeal. As part of the plea agreement, the sentence was to runconcurrently with the sentence imposed on September 6, 2013 in Otsego County forsimilar acts involving the same victim. County Court thereafter sentenced defendant inaccord with the negotiated plea bargain to a prison term of 12 years to be followed by 15years of postrelease supervision. Defendant now appeals.
We affirm. Defendant maintains that County Court erred in failing to have hiscompetency evaluated when it came to light at sentencing that defendant had been takenoff his depression medication upon his incarceration in Otsego County on September 6,2013. Defendant further contends that counsel's failure to move to withdraw his pleadeprived him of the effective assistance of counsel. While these claims survive the appealwaiver, defendant acknowledges that the arguments were not preserved through anappropriate postallocution motion (see People v Stover, 123 AD3d 1232, 1232 [2014], lvdenied 26 NY3d 936 [2015]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lvdenied 24 NY3d 965 [2014]), and he therefore requests that we vacate the plea in theinterest of justice (see CPL 470.15 [6] [a]). We [*2]decline to do so.
Were this issue before us we would find, and defendant admits, that there is nothingin the plea transcript that would indicate that he was in any way incapacitated at the timeof his plea. Our review of the sentencing minutes shows that both defendant and defensecounsel raised the medication/incapacity issue to explain defendant's assertion ofinnocence during the September 23, 2013 presentence interview—not to claim thathe was incapacitated at the time of his plea. Notably, defense counsel explained that oncemedication was resumed on October 4, 2013 defendant was "fine." We recognize that thepresentence report comments that defendant's behavior was combative and erratic duringhis incarceration in Otsego County, but there is nothing in the report nor in the recordcalling defendant's capacity into question during the plea proceeding. We also take notethat during a second interview with the Probation Department, defendant acknowledgedhis guilt. As for certain opinion comments in the presentence report, defense counselduly objected (see CPL 390.30), and we perceive no prejudice given that thecourt sentenced defendant in accord with the negotiated plea agreement.
Garry, J.P., Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.