| People v Hunt |
| 2020 NY Slip Op 06623 [188 AD3d 1648] |
| November 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Donald J. Hunt, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, PLLC, Syracuse(John A. Cirando of counsel), for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedSeptember 21, 2016. The judgment convicted defendant upon his plea of guilty of attempted rapein the first degree, rape in the third degree, attempted criminal sexual act in the first degree,criminal sexual act in the third degree, burglary in the second degree, unlawful imprisonment inthe second degree (two counts) and forcible touching.
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 of,inter alia, attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]),attempted criminal sexual act in the first degree (§§ 110.00, 130.50 [1]), andburglary in the second degree (§ 140.25 [2]). Initially, we agree with defendant thatthe purported waiver of the right to appeal is not enforceable inasmuch as the totality of thecircumstances fails to reveal that defendant "understood the nature of the appellate rights beingwaived" (People v Thomas, 34NY3d 545, 559 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; see People v Youngs, 183 AD3d1228, 1228 [4th Dept 2020], lv denied 35 NY3d 1050 [2020]). County Court's oralcolloquy "mischaracterized the waiver of the right to appeal, portraying it in effect as an 'absolutebar' to the taking of an appeal" (People vCole, 181 AD3d 1329, 1330 [4th Dept 2020]; see Thomas, 34 NY3d at 565;Youngs, 183 AD3d at 1228-1229). In explaining the waiver, the court suggested thatdefendant was ceding any right to challenge his guilty plea on appeal, but such an "improperdescription of the scope of the appellate rights relinquished by the waiver is refuted by. . . precedent, whereby a defendant retains the right to appellate review of veryselective fundamental issues" (Thomas, 34 NY3d at 566; see People v Callahan,80 NY2d 273, 280 [1992]). Moreover, the written waiver of the right to appeal does not"establish a valid waiver because it was not executed until sentencing" (People v Fox, 173 AD3d 1680,1681 [4th Dept 2019], lv denied 33 NY3d 1104 [2019]). Even if the written waiver isconsidered, it did not contain clarifying language; instead, it perpetuated the mischaracterizationthat the waiver of the right to appeal constituted an absolute bar to the taking of a first-tier directappeal and even incorrectly stated that the waiver foreclosed appellate review of nonwaivableissues, such as the voluntariness of the waiver, legality of the sentence, and defendant'scompetency to stand trial (see Thomas, 34 NY3d at 564, 566; Callahan, 80 NY2dat 280). Where, as here, the "trial court has utterly 'mischaracterized the nature of the right adefendant was being asked to cede,' [this] '[C]ourt cannot be certain that the defendantcomprehended the nature of the waiver of appellate rights' " (Thomas, 34 NY3dat 565-566).
Defendant contends that his mental health history cast significant doubt on the voluntarinessof his plea. However, " '[a] history of prior mental illness or treatment does not itself callinto question [a] defendant's competence' " (People v Jones, 175 AD3d 1845, 1846 [4th Dept 2019], lvdenied 34 NY3d 1078 [2019]; seePeople v Young, 66 AD3d 1445, 1446 [4th Dept 2009], lv denied 13 NY3d 912[2009]), and there is nothing in the record here to suggest that defendant " 'lacked thecapacity to understand the plea proceeding' " (People v Smith, 37 AD3d 1141, 1142 [4th Dept 2007], lvdenied 9 NY3d 851 [2007], denied reconsideration 9 NY3d 926 [2007]; seeJones, 175 AD3d at 1846; Young, 66 AD3d at 1446). Contrary to defendant's furthercontention, his "monosyllabic responses to [the court's] questions did not render the plea invalid"(People v Loper, 118 AD3d1394, 1395 [4th Dept 2014], lv denied 25 NY3d 1204 [2015] [internal quotationmarks omitted]; see People vGordon, 98 AD3d 1230, 1230 [4th Dept 2012], lv denied 20 NY3d 932[2012]).
We also reject defendant's contention that the court erred in denying his motion to withdrawhis plea without making a sufficient inquiry with respect to the grounds for that motion. "Thecourt afforded defendant the requisite 'reasonable opportunity to present his contentions' insupport of that motion . . . and [it] did not abuse its discretion in concluding that nofurther inquiry was necessary" (People vStrasser, 83 AD3d 1411, 1411 [4th Dept 2011], quoting People v Tinsley, 35NY2d 926, 927 [1974]). Additionally, defendant's belated and unsubstantiated assertion that theplea was the result of a failure to take prescribed medication is insufficient to support a motion towithdraw a plea (see People v Gonzales, 231 AD2d 939, 940 [4th Dept 1996], lvdenied 89 NY2d 923 [1996]; People v McNair [appeal No. 1], 186 AD2d 1089, 1089[4th Dept 1992], lv denied 80 NY2d 1028 [1992]).
Contrary to defendant's contention, his sentence is not unduly harsh or severe. Finally, wehave reviewed defendant's remaining contention and conclude that it lacks merit.Present—Whalen, P.J., Centra, Peradotto, Lindley and Bannister, JJ.