Opinion
523 KA 14–00336
06-08-2018
The PEOPLE of the State of New York, Respondent, v. Robert W. HENDERSON, Jr., Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL, FULTON), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL, FULTON), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: We previously held this case, reserved decision and remitted the matter to County Court to conduct a reconstruction hearing with respect to the portions of the plea proceeding that were not transcribed because of the inaudibility of the digital recording ( People v. Henderson, 140 A.D.3d 1761, 1761, 34 N.Y.S.3d 821 [4th Dept. 2016] ). During the reconstruction hearing, the former prosecuting attorney and defendant's former attorney testified with respect to their recollections of defendant's answers to questions, stating that defendant had responded affirmatively to all of the court's questions. In its decision following the reconstruction hearing, the court, which had presided over the original plea proceeding, found that, during portions of the plea proceeding that were transcribed as either "inaudible" or "no verbal response," defendant had actually responded affirmatively to the court's questions, indicating that he understood the court's questions specifically and the proceedings generally. Based on the record of the reconstruction hearing and the original plea proceeding, we now affirm.
Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived his right to appeal and that he had "a full appreciation of the consequences" of that waiver ( People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). In addition, "defendant's history of mental illness did not invalidate the waiver of the right to appeal inasmuch as there was no showing that defendant was uninformed, confused or incompetent when he waived his right to appeal" ( People v. Brand, 112 A.D.3d 1320, 1321, 976 N.Y.S.2d 906 [4th Dept. 2013], lv. denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] [internal quotation marks omitted] ). The valid waiver of the right to appeal forecloses defendant's challenge to the severity of the sentence inasmuch as "there [was] a specific sentence promise at the time of the waiver" ( People v. Brown, 115 A.D.3d 1204, 1206, 982 N.Y.S.2d 255 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] [internal quotation marks omitted]; see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Defendant further contends that the court erred in failing to order a competency hearing sua sponte and that defense counsel was ineffective in failing to request such a hearing. Although those contentions survive the plea and the valid waiver of the right to appeal to the extent that they implicate the voluntariness of the plea (see People v. Stoddard, 67 A.D.3d 1055, 1055, 889 N.Y.S.2d 282 [3d Dept. 2009], lv denied 14 N.Y.3d 806, 899 N.Y.S.2d 140, 925 N.E.2d 944 [2010] ; People v. Jermain, 56 A.D.3d 1165, 1165, 867 N.Y.S.2d 326 [4th Dept. 2008], lv denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445 [2009] ), and they need not be preserved for our review (see People v. Winebrenner, 96 A.D.3d 1615, 1615–1616, 947 N.Y.S.2d 279 [4th Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012] ; but see People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [3d Dept. 2014] ), we nevertheless conclude that the contentions lack merit. Generally, "[a] defendant is presumed competent ..., and the court is under no obligation to issue an order of examination ... unless it has ‘reasonable ground ... to believe that the defendant was an incapacitated person’ " ( People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ). Moreover, "a ‘history of psychiatric illness does not in itself call into question defendant's competence’ to proceed" ( People v. Carpenter, 13 A.D.3d 1193, 1194, 786 N.Y.S.2d 683 [4th Dept. 2004], lv. denied 4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88 [2005], quoting People v. Tortorici, 92 N.Y.2d 757, 765, 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] ).
We conclude, on the record of the reconstruction hearing and the original plea proceeding, that nothing in the plea proceeding established that defendant's mental illness or alleged failure to take medication related thereto "so stripped [defendant] of orientation or cognition that he lacked the capacity to plead guilty" ( People v. Alexander, 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802 [2002] ). He "responded appropriately to questioning by the court ... and was ‘unequivocal in assuring the court that he understood the meaning of the plea proceeding, and the implications of his decision to accept the plea agreement’ " ( People v. Yoho, 24 A.D.3d 1247, 1248, 808 N.Y.S.2d 856 [4th Dept. 2005] ; see People v. Hibbard, 148 A.D.3d 1538, 1539, 51 N.Y.S.3d 720 [4th Dept. 2017] ). In addition, the court noted in its decision following the reconstruction hearing that it had held "an extensive dialog[ue] with [defendant] regarding his mental health status," after which the court was assured that defendant understood the proceedings. Thus, the court did not err in failing sua sponte to conduct a competency hearing, and defense counsel was not ineffective in failing to request a competency hearing (see People v. Jorge N.T., 70 A.D.3d 1456, 1457, 894 N.Y.S.2d 625 [4th Dept. 2010], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010] ).
Although defendant's contention that the waiver of indictment was jurisdictionally defective because it was not voluntarily, intelligently or knowingly entered and the written waiver was not signed in open court is not precluded by the valid waiver of the right to appeal and does not require preservation (see People v. Waid, 26 A.D.3d 734, 734–735, 809 N.Y.S.2d 330 [4th Dept. 2006], lv denied 6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384 [2006] ), we nevertheless conclude that the contention lacks merit. The record establishes that defendant "entered a valid waiver of indictment, and freely and voluntarily consented to be prosecuted by way of a superior court information" ( People v. Lugg, 108 A.D.3d 1074, 1074, 968 N.Y.S.2d 785 [4th Dept. 2013] ; see CPL 195.10 ), and following the reconstruction hearing the court " ‘expressly found that defendant had executed the waiver in open court,’ " as required by CPL 195.20 ( People v. Myers, 145 A.D.3d 1596, 1597, 45 N.Y.S.3d 745 [4th Dept. 2016], lv granted 29 N.Y.3d 1093, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ).
Finally, defendant contends that his plea was not knowingly, voluntarily or intelligently entered due to his history of mental illness. Although that contention survives the valid waiver of the right to appeal (see People v. Watkins, 77 A.D.3d 1403, 1403, 909 N.Y.S.2d 233 [4th Dept. 2010], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010] ), that contention is not preserved for our review (see People v. Williams, 124 A.D.3d 1285, 1285, 999 N.Y.S.2d 642 [4th Dept. 2015], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] ; Carpenter, 13 A.D.3d at 1194, 786 N.Y.S.2d 683 ), and this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988). In any event, the record of the reconstruction hearing and the original plea proceeding establishes that the plea was knowingly, voluntarily and intelligently entered (see People v. Finch, 96 A.D.3d 1485, 1486, 946 N.Y.S.2d 378 [4th Dept. 2012] ; Watkins, 77 A.D.3d at 1403–1404, 909 N.Y.S.2d 233 ).