People v Jackson

2018 NY Slip Op 05536 [163 AD3d 1360]

July 26, 2018

Appellate Division, Third Department

As corrected through Wednesday, August 29, 2018

[*1]

The People of the State of New York,Respondent, v Marquis Jackson, Appellant.

John Ferrara, Monticello, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Pritzker, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered July 8,2016 in Albany County, convicting defendant upon his plea of guilty of the crimes of aggravatedcriminal contempt and failure to register or verify as a sex offender.

Defendant, a risk level two sex offender, was charged in a seven-count indictment withvarious crimes stemming from two separate incidents that occurred in late 2015. Additionally,defendant was charged in a superior court information with failure to register or verify as a sexoffender. Pursuant to a negotiated plea agreement, the People agreed to dismiss the top twocounts of the indictment and permit defendant to plead guilty to count 3 (aggravated criminalcontempt) in full satisfaction of the remaining counts with the understanding that defendantwould waive his right to appeal and would be sentenced to a prison term of 31/2 to7 years. The plea agreement also encompassed the superior court information and, in that regard,defendant agreed to waive indictment, as well as his right to appeal, and plead guilty to failure toregister or verify as a sex offender in exchange for one year in the local jail—to be servedconcurrently with the agreed-upon prison term to be imposed upon his conviction of aggravatedcriminal contempt. Following execution of the relevant waivers, defendant pleaded guilty to thecharged crimes and thereafter was sentenced in accordance with the terms of the plea agreement.Defendant now appeals.

Although defendant's present claims—that his guilty plea was not knowing, intelligentand voluntary and that Supreme Court erred in accepting his plea without first conducting a [*2]competency hearing—survive a valid waiver of the right toappeal (see People v Hilts, 157AD3d 1123, 1124 [2018]; People vSchreiner, 140 AD3d 1399, 1399 [2016]; People v Stover, 123 AD3d 1232, 1232 [2014], lv denied26 NY3d 936 [2015]), "such claims are unpreserved for our review absent record evidence of anappropriate postallocution motion" (People v Hilts, 157 AD3d at 1124; see People v Duffy, 126 AD3d1142, 1142 [2015]; People v Stover, 123 AD3d at 1232; People v Agrusti, 123 AD3d 1158,1158 [2014], lv denied 26 NY3d 1142 [2016]). Additionally, given that "defendant didnot make any statements during his plea allocution that would cast doubt on his guilt or negate anelement of the [charged] crime[s]," the narrow exception to the preservation requirement was nottriggered (People v Agrusti, 123 AD3d at 1158; see People v Stover, 123 AD3d at1232; People v Vandemark, 117AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]), and we declinedefendant's invitation to take corrective action in the interest of justice.

In any event, were we to address defendant's arguments, we would find them to be lacking inmerit. "A defendant is presumed competent and, absent reasonable grounds to believe that he orshe is incapable of understanding the proceedings due to a mental disease or defect, a court is notrequired to order a competency hearing based solely upon a history of substance abuse or mentalillness" (People v Hilts, 157 AD3d at 1124 [internal quotation marks, brackets andcitations omitted]; see People vSpencer, 156 AD3d 731, 732 [2017]; People v Blackmon, 122 AD3d 1071, 1072 [2014], lvdenied 24 NY3d 1218 [2015]). Despite expressing some initial confusion regarding hisability to obtain "a psychiatric evaluation," defendant never requested a competency hearing(see People v Vandemark, 117 AD3d at 1340) and, in response to Supreme Court'sinquiry, confirmed that he was waiving any motions or hearings that could be made or requestedupon his behalf. Defendant identified the medications he was taking, assured the court that hewas thinking clearly, indicated that he understood the proceedings and, on balance, providedcoherent and appropriate responses during the course of the plea colloquy (see id.). Underthese circumstances, we would not find that defendant made any statements that either called intoquestion the voluntariness of his plea or otherwise alerted Supreme Court "of the need to inquireas to his competency or to hold a competency hearing" (People v Hilts, 157 AD3d at1124 [internal quotation marks and citation omitted]; see People v Bennett, 30 AD3d 631, 631 [2006], lv denied7 NY3d 809 [2006]). Accordingly, the judgment of conviction is affirmed.

Garry, P.J., Egan Jr., Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.