| People v Park |
| 2018 NY Slip Op 01504 [159 AD3d 1132] |
| March 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Min Kwan A. Park, Appellant. |
John A. Cirando, Syracuse, for appellant.
Palmer J. Pelella, Special Prosecutor, Owego, for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered June 18, 2015, convicting defendant upon his plea of guilty of the crime of attemptedassault in the second degree.
Defendant was indicted for assault in the first degree stemming from an incident inDecember 2012 during which he stabbed his father with a knife. While incarcerated on thatcharge, defendant assaulted a fellow inmate by punching him in the face and head. Defendantsubsequently waived indictment and agreed to be prosecuted by a superior court informationcharging him with assault in the second degree. In satisfaction thereof, he pleaded guilty toattempted assault in the second degree in exchange for a sentence of nine months in jail.Thereafter, at the same proceeding, the parties agreed to a disposition of the first degree assaultcharge in which defendant was permitted to enter a plea of not responsible by reason of mentaldisease or defect. County Court accepted the plea[FN*] and, after a subsequent psychiatric evaluation,defendant was remanded to a psychiatric facility from September 4, 2014 until October 29, 2014.In June 2015, defendant was sentenced to time served on his plea of guilty to attempted assault inthe second degree. He now appeals from the judgment of conviction relatedthereto.
[*2] Defendant's contentions that his guilty pleawas not knowingly, voluntarily and intelligently entered and that County Court erred in acceptingsuch plea without first ordering a competency hearing are unpreserved for our review, as therecord does not reflect that defendant made an appropriate postallocution motion (see People v Hilts, 157 AD3d1123, 1124 [2018]; People vDuffy, 126 AD3d 1142, 1142 [2015]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lvdenied 24 NY3d 965 [2014]). Nor did defendant make any statements during the pleacolloquy that negated an essential element of the crime or otherwise cast doubt upon his guilt soas to trigger the narrow exception to the preservation rule (see People v Stover, 123 AD3d 1232, 1232 [2014], lvdenied 26 NY3d 936 [2015]; People v Vandemark, 117 AD3d at 1340; People v Rought, 90 AD3d 1247,1248 [2011], lv denied 18 NY3d 962 [2012]). Nevertheless, were we to consider theseissues, we would find them to be without merit.
"A defendant is presumed to be competent and is not entitled, as a matter of law, to acompetency hearing unless the court has reasonable grounds to believe that, because of mentaldisease or defect, the defendant is incapable of assisting in his or her own defense or ofunderstanding the proceedings against him or her" (People v Yu-Jen Chang, 92 AD3d 1132, 1134 [2012] [internalquotation marks, brackets and citations omitted]; see CPL 730.10 [1]; People vTortorici, 92 NY2d 757, 765 [1999], cert denied 528 US 834 [1999]; People v Johnson, 145 AD3d1109, 1110 [2016], lv denied 29 NY3d 949 [2017]). Although the record confirmsthat defendant had been an inpatient at various psychiatric treatment facilities and was diagnosedwith certain mental disorders following the 2012 assault on his father, "[a] trial court is notrequired to hold a CPL article 730 hearing simply because a defendant has a history of mentalillness, and such a history does not necessarily render a defendant incompetent to enter aknowing and voluntary plea" (People vBarclay, 1 AD3d 705, 706 [2003] [citations omitted], lv denied 1 NY3d 567[2003]; accord People v Tafari, 90AD3d 1341, 1342 [2011], lv denied 19 NY3d 977 [2012]; People v Harrison, 52 AD3d 969,970 [2008], lv denied 11 NY3d 737 [2008]; see People v Tortorici, 92 NY2d at765; People v Morgan, 87 NY2d 878, 880 [1995]). "[N]or is a subsequent finding ofmental illness evidence of a lack of competency during the subject time period" (People v Bilal, 79 AD3d 900, 902[2010], lv denied 16 NY3d 856 [2011]; see People v Gelikkaya, 84 NY2d 456,459-460 [1994]; People v Coons, 73AD3d 1343, 1345 [2010], lv denied 15 NY3d 803 [2010]).
Here, a review of the plea proceedings and defendant's participation therein discloses nothingto support the conclusion that he was mentally incompetent at the time that he entered his guiltyplea. During the plea colloquy, defendant gave appropriate and coherent responses to CountyCourt's inquiries, indicated that he understood each of the rights he was relinquishing and theconsequences of his plea, affirmed that he was entering his guilty plea freely and voluntarily,provided details of the crime to which he was pleading and readily admitted that he had, in fact,committed such crime. Furthermore, at no point during the plea proceeding did defense counsel,"who was in the best position to assess defendant's capacity," raise the issue of defendant's fitnessto proceed or request a CPL 730.30 examination (People v Gelikkaya, 84 NY2d at 460;see People v Tortorici, 92 NY2d at 767; People v Ferrer, 16 AD3d 913, 914 [2005], lv denied 5NY3d 788 [2005]). To the contrary, counsel represented that defendant had coherentcommunications with him about the case and confirmed that defendant had the capacity tounderstand the proceedings and to assist in his own defense. Under these circumstances, wewould find no abuse of discretion in County Court's acceptance of defendant's guilty plea withoutholding a competency hearing (see People v Duffy, 126 AD3d at 1142; People vHarrison, 52 AD3d at 970; People vMears, 16 AD3d 917, 918 [2005]; People v Stonis, 246 AD2d 911, 911 [1998],lv denied 92 NY2d 883 [1998]; People v Dover, 227 AD2d 804, 805 [1996],lv denied 88 NY2d 984 [1996]).
[*3] Defendant's claim that he was denied the effective assistance of counsel is similarly unpreservedfor our review absent a postallocution motion (see People v Sumter, 157 AD3d 1125, 1126 [2018]; People v Dubois, 150 AD3d 1562,1563-1564 [2017]). In any event, for the reasons previously discussed, we would rejectdefendant's contention that counsel's failure to request a competency hearing constitutedineffective assistance (see People v Hilts, 157 AD3d at 1124; People v Kot, 126 AD3d 1022,1025 [2015], lv denied 25 NY3d 1203 [2015]; People v Tafari, 90 AD3d at 1343;People v Lafoe, 75 AD3d 663,663-664 [2010], lv denied 15 NY3d 953 [2010]). Finally, defendant's claim that counselwas ineffective for failing to pursue a defense of not guilty by reason of mental disease or defect,as he had with respect to the 2012 assault, concerns matters outside of the record and is moreproperly pursued in a CPL article 440 motion (see People v Shiels, 93 AD3d 992, 993 [2012]; People vHoldip, 87 AD2d 598, 598 [1982]; see also People v Lafoe, 75 AD3d at 664).
Egan Jr., J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's subsequent motionto withdraw this plea on the ground that he was denied the effective assistance of counsel wasdenied.