| People v Davis |
| 2017 NY Slip Op 03805 [150 AD3d 1396] |
| May 11, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Leslie J.Davis, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Chad W. Brown, District Attorney, Johnstown (Christopher M. Stanyon of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Fulton County (Giardino, J.),rendered September 12, 2013, convicting defendant upon her plea of guilty of the crime ofassault in the second degree, and (2) by permission, from an order of said court (Hoye, J.),entered November 12, 2015, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgment of conviction, without a hearing.
Defendant was charged in an indictment with assault in the second degree (two counts) andreckless endangerment in the first degree. She thereafter pleaded guilty to one count of assault inthe second degree in satisfaction of the indictment and charges from a separate incident andwaived the right to appeal. County Court (Giardino, J.) sentenced defendant in accord with theplea agreement to 3
We affirm. As to defendant's direct appeal, her claim that her plea was involuntary due [*2]to mental incapacity survives her unchallenged waiver of the rightto appeal, but is unpreserved for our review in light of her failure to move to withdraw her plea(see CPL 220.60; People vLang, 127 AD3d 1253, 1255 [2015]; People v Velazquez, 125 AD3d 1063, 1064 [2015], lvdenied 25 NY3d 993 [2015]; Peoplev Chavis, 117 AD3d 1193, 1194 [2014]). Further, the narrow exception to thepreservation rule is not applicable here, insofar as defendant did not make any statements duringthe plea colloquy that cast doubt on her guilt or otherwise called into question the voluntarinessof her plea (see People v Chavis, 117 AD3d at 1194; People v Borden, 91 AD3d 1124, 1125 [2012], lv denied 19NY3d 862 [2012]). Similarly, defendant's claim of ineffective assistance of counsel, to the extentthat it implicates the voluntariness of her plea, is not preserved for our review because the recordfails to reflect that she moved to withdraw her plea (see People v Garry, 133 AD3d 1039, 1039 [2015]; People v Ortiz, 127 AD3d 1416,1417 [2015], lv denied 26 NY3d 1010 [2015]).
In her CPL article 440.10 motion, defendant reiterates that her plea was involuntary due toher mental incapacity and that counsel was ineffective for permitting her to enter a guilty plea.She further contends that it was error to deny this motion without a hearing. We are unpersuaded,notwithstanding evidence in the record that defendant has mental health issues. The recordconfirms that County Court (Giardino, J.) was alerted as to defendant's mental health statusthroughout the proceedings. Starting with the arraignment on March 22, 2013, and at eachensuing appearance, the court inquired as to the medications that defendant was taking and herunderstanding of the proceedings. At the June 7, 2013 appearance, defendant informed the courtthat she was off her medication at the time of the underlying incident and was now takingeffexor. The proceeding was adjourned to June 28, 2013, at which time defendant informed thecourt that she was taking an antidepressant that was helping her. The matter was adjourned againto July 11, 2013. At this appearance, defendant informed the court that she had a clear mind andthat the medication was helping her to function and did not prevent her "from understandingwhat's going on." The plea allocution was then completed. While defendant supported herpostconviction motion with medical records from the Fulton County Correctional Facility that doraise concerns about her mental capacity, those records do not constitute newly discoveredevidence within the meaning of CPL 440.10 (1) and could have been presented to the court priorto her sentencing (see People v Kot,126 AD3d 1022, 1026 [2015], lv denied 25 NY3d 1203 [2015]). We also recognizethat the probation officer raised a mental health concern in the presentence report. On the otherhand, defendant was examined pursuant to CPL article 730 in April 2013 and found competent tostand trial. Given this record, we conclude that County Court (Hoye, J.) did not err in denyingdefendant's CPL 440.10 motion without a hearing.
Next, we reject her contention that the Assistant District Attorney (hereinafter ADA) whoprosecuted this matter had a conflict of interest that would warrant vacating the judgment ofconviction. Under these circumstances, defendant must show "actual prejudice arising from ademonstrated conflict of interest or a substantial risk of an abuse of confidence" (People v Zinkhen, 89 AD3d 1319,1320 [2011] [internal quotation marks and citations omitted], lv denied 18 NY3d 964[2012]; see People v Giroux, 122AD3d 1063, 1064 [2014], lv denied 25 NY3d 1164 [2015]). In our view, defendant'svague allegation that a conflict of interest existed because the ADA "was a personal friend" ofher in-laws, with whom she alleges she has a contentious relationship, and that defendant was awitness in a case prosecuted by the ADA in 2006 does not demonstrate any actual prejudice toher in this matter nor the existence of a substantial risk of an abuse of confidence (see Peoplev Giroux, 122 AD3d at 1064-1065; People v Vanderpool, 217 AD2d 716, 718[1995], lv denied 86 NY2d 847 [1995]). Defendant's remaining claims in her CPL article440.10 motion were capable of being raised on direct appeal and are therefore foreclosed fromour review under this motion (seePeople v Oddy, 144 AD3d 1322, 1324 [2016]; People v Rebelo, 137 AD3d 1315, 1317 [2016], lv denied28 NY3d 936 [2016]).
[*3] McCarthy, J.P., Egan Jr.,Devine and Clark, JJ., concur. Ordered that the judgment and order are affirmed.
Footnote *:In the interim, Judge Giardinoretired.