Opinion
105665
12-04-2014
The PEOPLE of the State of New York, Respondent, v. Edward AGRUSTI, Appellant.
Brian M. Callahan, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Brian M. Callahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and LYNCH, JJ.
Opinion
GARRY, J.
Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered January 8, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the third degree.
Defendant pleaded guilty to one count of criminal possession of a forged instrument in the third degree in satisfaction of a four-count indictment stemming from an incident in which he attempted to pass a forged check. The plea agreement included the waiver of defendant's right to appeal. Defendant appeals, arguing that he lacked the competency to enter his plea, and that County Court erred in failing to order a second competency hearing prior to accepting his plea. As it implicates the voluntariness of the plea, this argument is not foreclosed by defendant's appeal waiver; it is, however, unpreserved, as defendant did not seek relief by means of an appropriate postallocution motion (see People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [2014] ; People v. Mattison, 94 A.D.3d 1157, 1158, 941 N.Y.S.2d 528 [2012] ). Nor do we find the narrow exception to the preservation requirement to be applicable here, as defendant did not make any statements during his plea allocution that would cast doubt on his guilt or negate an element of the crime (see e.g. People v. Ladieu, 105 A.D.3d 1265, 1266, 963 N.Y.S.2d 482 [2013], lv. denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ). In any event, we would have found no abuse of discretion in the court's failure to order a second competency hearing (see People v. Tortorici, 92 N.Y.2d 757, 765–766, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999] ; People v. Dantzler, 63 A.D.3d 1376, 1377–1378, 881 N.Y.S.2d 222 [2009], lv. denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ).
Defendant had previously been declared incompetent, but had been reevaluated and found competent following a period of confinement and care.
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ORDERED that the judgment is affirmed.
PETERS, P.J., LAHTINEN, ROSE and LYNCH, JJ., concur.