| People v Cole |
| 2018 NY Slip Op 07781 [166 AD3d 1219] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Scott J. Cole, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Kelli P. McCoski, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of MontgomeryCounty (Catena, J.), rendered July 14, 2015, convicting defendant upon his plea of guiltyof the crime of arson in the second degree, and (2) by permission, from an order of saidcourt, entered October 26, 2017, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
Defendant entered a guilty plea to arson in the second degree in satisfaction of aneight-count indictment, waived his right to appeal his conviction and sentence and wassentenced, as a second violent felony offender, to 15 years in prison followed by fiveyears of postrelease supervision. Defendant's subsequent motion to vacate the judgmentpursuant to CPL 440.10 was denied without a hearing. Defendant appeals from thejudgment of conviction and, by permission, from the denial of his CPL article 440motion.
As to defendant's direct appeal, although his challenge to the voluntariness of hisguilty plea survives his waiver of the right to appeal, he failed to preserve this issue bymaking a postallocution motion to withdraw his plea (see CPL 220.60 [3]; People v Davis, 150 AD3d1396, 1397 [2017], lv denied 30 NY3d 1018 [2017]). Further, the narrowexception to the preservation requirement is not implicated, as defendant made nostatements during the plea allocution or at sentencing that were inconsistent with his guiltor called into question the voluntariness of his plea (see People v Blackburn, 164 AD3d 960, 961 [2018];People v Davis, 150 AD3d at 1397). To the extent that defendant's claim ofineffective assistance of counsel implicates the voluntariness of his plea, it is similarlynot preserved for our review on direct appeal in the absence of a motion to withdraw hisplea (see People v Rivera,164 AD3d 1573, 1574 [2018]; People v Davis, 150 AD3d at1397).
[*2] With respect to his CPL 440.10motion, defendant argues that the judgment of conviction should be vacated because hewas not competent to enter a knowing, intelligent and voluntary plea and counsel'sfailure to raise this issue deprived him of effective representation. Defendant alsocontends that it was error for County Court to deny this motion without a hearing.Although medical records establish that defendant received treatment for psychiatricissues prior to and during his incarceration and around the time of his plea, there is noindication that defendant was incapable of understanding the nature of the proceedings(see People v Ryder, 136AD3d 1109, 1110 [2016], lv denied 27 NY3d 1005 [2016]; People v Kaszubinski, 55AD3d 1133, 1135 [2008], lv denied 12 NY3d 855 [2009]; compare People v Hennessey,111 AD3d 1166, 1168 [2013]). Defendant actively participated in the pleaproceedings and asked questions to clarify the nature of his plea. Accordingly, counsel'sfailure to investigate further or request a competency hearing did not deprive defendantof effective assistance (seePeople v Ricketts-Simpson, 130 AD3d 1149, 1150 [2015]; People v Blackmon, 122 AD3d1071, 1072-1073 [2014], lv denied 24 NY3d 1218 [2015]). Further, giventhat defendant's submissions do not demonstrate that "the nonrecord facts sought to beestablished are material and would entitle him to relief," we find that County Courtproperly denied the motion without a hearing (People v Satterfield, 66 NY2d796, 799 [1985]; see People vJones, 161 AD3d 1311, 1313 [2018], lv denied 31 NY3d 1118 [2018];People v Kot, 126 AD3d1022, 1025 [2015], lv denied 25 NY3d 1203 [2015]).
Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment andorder are affirmed.