| People v Blackburn |
| 2018 NY Slip Op 05637 [164 AD3d 960] |
| August 2, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daniel T. Blackburn, Appellant. |
Edward S. Graves, Indian Lake, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered August 25, 2016, convicting defendant upon his plea of guilty of the crime of attemptedassault in the second degree.
As a result of a domestic altercation that occurred in May 2015, defendant was charged in afour-count indictment with assault in the second degree, criminal possession of a weapon in thethird degree, menacing in the first degree and unlawful imprisonment in the second degree. Infull satisfaction of these charges, defendant pleaded guilty to the reduced charge of attemptedassault in the second degree and executed a waiver of appeal. Under the terms of the pleaagreement, he was to receive a split sentence of time served and five years of probation. CountyCourt specifically advised defendant that if he were arrested for committing any other crimesprior to sentencing, it would not be bound by the sentencing commitment and it could sentencedefendant to 1
[*2] We affirm. Although defendant's claim that he was notmentally competent to enter a guilty plea survives his valid, unchallenged waiver of appeal, thisissue is nonetheless unpreserved for our review in the absence of an appropriate postallocutionmotion to withdraw his guilty plea on this ground, despite an opportunity to do so prior to theimposition of sentence (see CPL 220.60 [3]; People v Williams, 27 NY3d 212, 219-220 [2016]; People v Davis, 150 AD3d 1396,1397 [2017], lv denied 30 NY3d 1018 [2017]). Moreover, contrary to defendant'scontention, the narrow exception to the preservation requirement was not implicated, asdefendant did not make any statements during his plea allocution or at sentencing that wereinconsistent with his guilt or otherwise called into question the voluntariness of his plea (seePeople v Lopez, 71 NY2d 662, 666 [1988]; People v Velazquez, 125 AD3d 1063, 1063-1064 [2015], lvdenied 25 NY3d 993 [2015]; Peoplev Chavis, 117 AD3d 1193, 1194 [2014]).
In any event, were defendant's claim properly before us, we would not discern any indicationin the record that defendant suffered from a mental defect that impacted the voluntariness of hisplea. Defendant's history of mental illness, by itself, did not render him incompetent to enter aknowing and voluntary plea (see People v Chavis, 117 AD3d at 1194; People v Gomez, 72 AD3d 1337,1338 [2010]) or necessitate a CPL article 730 hearing (see CPL 730.10 [1]; People v Park, 159 AD3d 1132,1133 [2018], lv denied 31 NY3d 1085 [May 30, 2018]; Peoplev Stover, 123 AD3d 1232, 1233 [2014], lv denied 26 NY3d 936 [2015]).Further, during the plea colloquy, defendant confirmed that he understood the proceedings anddenied being under the influence of any medication or having any "medical or mental healthcondition" that interfered with his ability to understand what was transpiring (see People vStover, 123 AD3d at 1233; People vGuyette, 121 AD3d 1430, 1431 [2014], lv denied 27 NY3d 998 [2016]; People v Vandemark, 117 AD3d1339, 1340 [2014], lv denied 24 NY3d 965 [2014]; People v Chavis, 117AD3d at 1194). To the extent that defendant claims that the sentence imposed was harsh andexcessive, appellate review of this claim is precluded by his unchallenged waiver of appeal (see People v Perkins, 140 AD3d1401, 1403 [2016], lv denied 28 NY3d 1126 [2016]; People v Hall, 135 AD3d 1246,1246 [2016], lv denied 27 NY3d 998 [2016]). Defendant's remaining contentions havebeen examined and found to be without merit.
Egan Jr., J.P., Lynch, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.