| People v Taylor |
| 2021 NY Slip Op 03220 [194 AD3d 1264] |
| May 20, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Timothy Taylor, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered June 26, 2018, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the third degree.
Pursuant to a negotiated agreement, defendant waived indictment and agreed to beprosecuted by a superior court information charging him with one count of attempted burglary inthe third degree. Defendant pleaded guilty to that crime and was required, as part of the pleaagreement, to waive his right to appeal. Consistent with the terms of the agreement, CountyCourt sentenced defendant, as an acknowledged second felony offender, to a prison term of1
We affirm. Defendant argues that his guilty plea was not knowing, voluntary and intelligentbecause his psychiatric condition rendered him incapable of understanding the proceedings. Hefurther contends that he was deprived of the effective assistance of counsel based upon counsel'sfailure to request a competency exam pursuant to CPL article 730. These claims impact upon thevoluntariness of his plea and, thus, survive any appeal waiver (see People v Davis, 150 AD3d1396, 1397 [2017], lv denied 30 NY3d 1018 [2017]), but were not preserved by apostallocution motion (see CPL 220.60 [3]; People v McClain, 165 AD3d 1345, 1346 [2018]; People v Park, 159 AD3d 1132,1134 [2018], lv denied 31 NY3d 1085 [2018]). Upon consideration, we are not persuadedthat his statements regarding his mental health cast doubt on his guilt or otherwise called intoquestion the voluntariness of his plea so as to trigger the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Gumbs, 169 AD3d 1119,1119 [2019], lv denied 33 NY3d 1105 [2019]), or that his request for corrective action inthe interest of justice is warranted (see CPL 470.15 [3]).
Were the issues properly before us, we would find that a review of the plea proceedings,including defendant's participation, fails to demonstrate that his mental health "interfered with hisability to understand the proceedings or impacted the voluntary nature of his plea" (People v Taft, 169 AD3d 1266,1267 [2019], lv denied 33 NY3d 1074 [2019]; see People v Dolison, 189 AD3d 1779, 1780-1781 [2020];People v Park, 159 AD3d at 1134). Defense counsel, " 'who was in the bestposition to assess defendant's capacity,' " indicated that they had discussed defendant'smental health and saw no need to raise the issue of his fitness or to request a CPL 730.30examination (People v Park, 159 AD3d at 1134, quoting People v Gelikkaya, 84NY2d 456, 460 [1994]). Thus, we would find that his guilty plea was knowing, voluntary andintelligent (see People v Dolison, 189 AD3d at 1780-1781) and reject his contention thatcounsel's failure to request a competency hearing constituted ineffective assistance (seePeople v Park, 159 AD3d at 1134; People v White, 153 AD3d 1041, 1042 [2017]). Further, we find[*2]that County Court (Sira, J.) did not abuse its discretion inaccepting his plea without holding a competency hearing (see People v Chapman, 179 AD3d 1526, 1527 [2020], lvdenied 35 NY3d 968 [2020]; People v Park, 159 AD3d at 1134).[FN*] To the extent that defendantrelies on matters outside the record regarding, among other things, communications with counsel,they are more properly raised in a motion pursuant to CPL article 440 (see People v Williams, 184 AD3d1010, 1013-1014 [2020], lv denied 35 NY3d 1097 [2020]).
Defendant's challenge to his sentence as harsh and excessive is not precluded by the waiverof appeal, which we agree is invalid (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Avera, 192 AD3d 1382, 1382-1383 [2021]; People v LaPierre, 189 AD3d1813, 1815 [2020], lv denied 36 NY3d 1098 [2021]). Nonetheless, this issue is mootas defendant has already served his sentence and was recently released upon reaching hismaximum expiration date (see People vKehn, 173 AD3d 1564, 1564 [2019]; People v Evans, 159 AD3d 1226, 1227 [2018], lv denied 31NY3d 1081 [2018]).
Lynch, J.P., Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The argument that County Courtshould have sua sponte ordered a competency exam need not be preserved (see People v Bickham, 189 AD3d1972, 1976 [2020]; People v Chapman, 179 AD3d at 1527).