| People v Jones |
| 2019 NY Slip Op 06954 [175 AD3d 1845] |
| September 27, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v James Jones, Jr., Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), renderedNovember 22, 2016. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Byfailing to move to withdraw the plea or to vacate the judgment, defendant failed to preserve forour review his contention that, based on his alleged mental illness and comments that he madeduring the plea colloquy and the sentencing hearing, his guilty plea was not voluntarily,knowingly, and intelligently entered (see People v Wilkes, 160 AD3d 1491, 1491 [4thDept 2018], lv denied 31 NY3d 1154 [2018]; People v Williams, 124 AD3d1285, 1285 [4th Dept 2015], lv denied 25 NY3d 1078 [2015]). Contrary to defendant'scontention, this case does not fall within the rare exception to the preservation requirementbecause nothing defendant said during the plea colloquy or the sentencing hearing "clearly cast[ ]significant doubt upon the defendant's guilt or otherwise call[ed] into question the voluntarinessof the plea" (People v Lopez, 71 NY2d 662, 666 [1988]; see Williams, 124 AD3dat 1285-1286).
Defendant's comment during the factual allocution about the firearm's operability wasequivocal and did not cast significant doubt on whether the gun actually functioned (seePeople v Goldstein, 12 NY3d 295, 301 [2009]; People v Ramos, 164 AD3d 922, 923[2d Dept 2018], lv denied 32 NY3d 1114 [2018]). At most, defendant's commentbetrayed his lack of knowledge with respect to the firearm's operability, but defendant'sknowledge of the operability of the firearm is not an element of the offense (see People vBrown, 107 AD3d 1477, 1478 [4th Dept 2013], lv denied 21 NY3d 1040 [2013]). Inaddition, defendant's comment at sentencing did not cast doubt on his guilt because thechallenged comment, which concerned the length of the available sentencing range, did notundermine any of the facts that supported defendant's guilt (cf. People v Beasley, 25NY2d 483, 486-488 [1969]; People v Gresham, 151 AD3d 1175, 1177-1178 [3d Dept2017]).
Finally, defendant's prior history of mental health problems did not cast significant doubt onthe voluntariness of the plea. "A history of prior mental illness or treatment does not itself callinto question [a] defendant's competence," and there is no indication in the record that defendantwas unable to understand the plea proceedings or that he was mentally incompetent at the time heentered his guilty plea (People v Robinson, 39 AD3d 1266, 1267 [4th Dept 2007], lvdenied 9 NY3d 869 [2007] [internal quotation marks omitted]; see Williams, 124AD3d at 1286). During the plea colloquy, defendant denied suffering from any mental healthproblems at that time and, in general, "defendant's responses to [County C]ourt's inquiriesappeared to be informed, competent and lucid" (People v Young, 66 AD3d 1445, 1446[4th Dept 2009], lv denied 13 NY3d 912 [2009]; see People v Shackelford, 100AD3d 1527, 1528 [4th Dept 2012], lv denied 21 NY3d 1009 [2013]).Present—Carni, J.P., Lindley, DeJoseph, Curran and Winslow, JJ.