| People v Hibbard |
| 2017 NY Slip Op 02185 [148 AD3d 1538] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v William Hibbard, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
William Hibbard, defendant-appellant pro se.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Ashley R. Lowry of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered March20, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20).Preliminarily, we note that defendant's waiver of the right to appeal is not valid. The perfunctoryinquiry made by County Court during the colloquy was not sufficient "to ensure that the waiverof the right to appeal was a knowing and voluntary choice" (People v Beaver, 128 AD3d 1493, 1494 [2015] [internal quotationmarks omitted]). Moreover, although the record includes a signed written waiver of the right toappeal, there was no "attempt by the court to ascertain on the record an acknowledgment fromdefendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents"and understood them (People v Callahan, 80 NY2d 273, 283 [1992]; see People v Bradshaw, 18 NY3d257, 265-267 [2011]; cf. People vBryant, 28 NY3d 1094, 1095-1096 [2016]).
Defendant's challenge in his main brief to the factual sufficiency of the plea allocution is notpreserved for our review (see People vLugg, 108 AD3d 1074, 1075 [2013]; see generally People v Lopez, 71 NY2d662, 665 [1988]) and is lacking in merit in any event. No factual basis for the plea is requiredwhere, as here, "a defendant enters a negotiated plea to a lesser crime than the one charged" (People v Johnson, 23 NY3d 973,975 [2014]; see People v Gibson,140 AD3d 1786, 1787 [2016], lv denied 28 NY3d 1072 [2016]).
Defendant's contention in his pro se supplemental brief that the court erred in accepting theguilty plea notwithstanding defendant's mental health history is likewise not preserved for ourreview (see generally People vMobley, 118 AD3d 1336, 1337 [2014], lv denied 24 NY3d 1121 [2015]). In anyevent, the court properly accepted the guilty plea after conducting an appropriate inquiry intodefendant's history of mental health problems. A "history of prior mental illness or treatmentdoes not itself call into question defendant's competence" (People v Taylor, 13 AD3d 1168, 1169 [2004], lv denied 4NY3d 836 [2005]), and nothing on the record before us establishes that defendant was so lackingin "orientation or cognition that he lacked the capacity to plead guilty" (People vAlexander, 97 NY2d 482, 486 [2002]). To the contrary, the record establishes that defendanthad a rational understanding of the nature and effect of his plea (see generally People v Young, 66AD3d 1445, 1446 [2009], lv denied 13 NY3d 912 [2009]; People v Lear, 19 AD3d 1002,1002 [2005], lv denied 5 NY3d 807 [2005]).
Finally, contrary to defendant's contention in his main brief, we conclude that the sentence isnot unduly harsh or severe. Present—Carni, J.P., Lindley, NeMoyer, Troutman andScudder, JJ.