| People v Gumbs |
| 2019 NY Slip Op 00933 [169 AD3d 1119] |
| February 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AntonC. Gumbs, Appellant. |
Craig S. Leeds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), renderedNovember 10, 2016, convicting defendant upon his plea of guilty of the crime of robbery in the firstdegree.
In satisfaction of a four-count indictment, defendant pleaded guilty to robbery in the first degreeand waived his right to appeal. He was sentenced as a second felony offender to the agreed-uponprison term of 18 years, followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that, given his posttraumatic stress disorder and other mental health issuesnoted in the presentence report and his assertion at sentencing that his judgment is, at times, cloudedbecause of his mental health deficiencies, the knowing and voluntary nature of his plea was called intoquestion and County Court should have conducted a competency hearing before final judgment wasentered. In addition, defendant contends that, because defense counsel did not request a competencyhearing, he received the ineffective assistance of counsel.
Defendant's contentions—to the extent that they impact the voluntariness of hisplea—survive his unchallenged waiver of the right to appeal but are unpreserved for our reviewas the record does not reflect that defendant made an appropriate postallocution motion (see People v Chavis, 117 AD3d 1193,1194 [2014]; People v Bennett, 30AD3d 631, 631 [2006], lv denied 7 NY3d 809 [2006]). Further, despite defendant'scontention to the contrary, we are unpersuaded that defendant's statements regarding his overall mentalhealth cast doubt on his guilt or otherwise called into question the voluntariness of his plea so as totrigger the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d662, 666 [1988]; People v Chavis, 117 AD3d at 1194; cf. People v Mox, 20 NY3d 936, 937-938 [2012]).
In any event, were these contentions properly before us, we would find them to be without merit.Defendant's mental health issues alone do not necessarily render him incompetent to enter a knowingand voluntary guilty plea or require that defense counsel request, or County Court order, a CPL article730 competency hearing (see People vPark, 159 AD3d 1132, 1133 [2018], lv denied 31 NY3d 1085 [2018]; People v Duffy, 126 AD3d 1142, 1142[2015]; People v Chavis, 117 AD3d at 1194). Further, nothing in the plea colloquy or atsentencing indicates that defendant suffered from a mental defect that impacted the voluntariness of hisplea (see People v Park, 159 AD3d at 1133-1134; People v Chavis, 117 AD3d at1194; People v Tafari, 90 AD3d1341, 1342-1343 [2011], lv denied 19 NY3d 977 [2012]; People v Jenks, 69 AD3d 1120,1121-1122 [2010], lv denied 14 NY3d 841 [2010]).
To the extent that defendant asserts that defense counsel was ineffective because he did not requestat sentencing a reduction in the agreed-upon sentence, such contention does not impact thevoluntariness of the plea and, therefore, is precluded by the unchallenged waiver of the right to appeal(see People v Burks, 163 AD3d1268, 1269 [2018]). Similarly, the appeal waiver precludes defendant's challenge to the severityof the agreed-upon sentence (see People vTucker, 160 AD3d 1303, 1304 [2018], lv denied 31 NY3d 1122 [2018]).
Egan Jr., J.P., Clark, Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.