| People v Hilts |
| 2018 NY Slip Op 00353 [157 AD3d 1123] |
| January 18, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AltonHilts, Appellant. |
Kathryn S. Dell, Troy, for appellant.
Robert M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law Intern), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Schenectady County (Loyola, J.),rendered February 10, 2015, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with one count of criminal sale of a controlled substance in the thirddegree. At a subsequent appearance before County Court (Drago, J.), and in full satisfaction ofboth the superior court information and other pending drug-related charges, defendant waived hisright to appeal and pleaded guilty to the charged crime. Consistent with the terms of the pleaagreement, County Court (Loyola, J.) thereafter sentenced defendant as a second felony offenderto four years in prison followed by three years of postrelease supervision. Defendant nowappeals.
Defendant argues on appeal that County Court (Drago, J.) failed to adequately exploredefendant's stated mental health issues (depression, anxiety and a sleep disorder) and erred inaccepting his plea without first conducting a competency hearing. Although defendant'sarguments on these points survive his uncontested waiver of the right to appeal, such claims areunpreserved for our review absent record evidence of an appropriate postallocution motion (see People v Duffy, 126 AD3d1142, 1142 [2015]; People vBorden, 91 AD3d 1124, 1125 [2012], lv denied 19 NY3d 862 [2012]; People v Stoddard, 67 AD3d 1055,1055 [2009], lv denied 14 NY3d 806 [2010]). Were we to reach this issue, we would findit to be lacking in merit.
[*2] "[A] defendant ispresumed competent and, absent reasonable grounds to believe that he or she is incapable ofunderstanding the proceedings due to a mental disease or defect, a court is not required to order acompetency hearing based solely upon a history of substance abuse or mental illness" (Peoplev Duffy, 126 AD3d at 1142; seePeople v Bennett, 30 AD3d 631, 631 [2006], lv denied 7 NY3d 809 [2006]).Here, a review of the plea colloquy confirms that defendant responded appropriately to CountyCourt's inquiries, indicated that he understood the nature of the proceedings and assured the courtthat he wished to proceed (see People vSorey, 55 AD3d 1063, 1064 [2008], lv denied 11 NY3d 930 [2009]; People vBennett, 30 AD3d at 631; People vMears, 16 AD3d 917, 918 [2005]). The record similarly reflects that defendant "made nostatements that called into question the voluntariness of his plea so as to alert the court of theneed to inquire as to his competency or to hold a competency hearing" (People v Duffy,126 AD3d at 1142; see People vRought, 90 AD3d 1247, 1248 [2011], lv denied 18 NY3d 962 [2012]; Peoplev Bennett, 30 AD3d at 631). Under these circumstances, we would not find that CountyCourt erred in accepting defendant's plea without first conducting a competency hearing (seePeople v Duffy, 126 AD3d at 1143; People v Mears, 16 AD3d at 918). To the extentthat defendant's related ineffective assistance of counsel claim implicates the voluntariness of hisplea and, therefore, survives the appeal waiver, this issue is similarly unpreserved for our review(see People v Baxter, 154 AD3d1010, 1011 [2017]; People vWilliams, 150 AD3d 1549, 1551 [2017]; People v Borden, 91 AD3d at1125-1126). Additionally, for the reasons previously discussed, were this issue properly beforeus, we would find it to be lacking in merit.
McCarthy, J.P., Egan Jr., Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.