Opinion
909 KA 17–00185
09-27-2019
The PEOPLE of the State of New York, Respondent, v. James JONES, Jr., Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). By failing to move to withdraw the plea or to vacate the judgment, defendant failed to preserve for our review his contention that, based on his alleged mental illness and comments that he made during the plea colloquy and the sentencing-hearing, his guilty plea was not voluntarily, knowingly, and intelligently entered (see People v. Wilkes , 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ; 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] ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement because 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 voluntariness of the plea" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see Williams , 124 A.D.3d at 1285–1286, 999 N.Y.S.2d 642 ).
Defendant's comment during the factual allocution about the firearm's operability was equivocal and did not cast significant doubt on whether the gun actually functioned (see People v. Goldstein , 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009] ; People v. Ramos , 164 A.D.3d 922, 923, 82 N.Y.S.3d 103 [2d Dept. 2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018] ). At most, defendant's comment betrayed his lack of knowledge with respect to the firearm's operability, but defendant's knowledge of the operability of the firearm is not an element of the offense (see People v. Brown , 107 A.D.3d 1477, 1478, 967 N.Y.S.2d 319 [4th Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013] ). In addition, defendant's comment at sentencing did not cast doubt on his guilt because the challenged comment, which concerned the length of the available sentencing range, did not undermine any of the facts that supported defendant's guilt (cf. People v. Beasley , 25 N.Y.2d 483, 486–488, 307 N.Y.S.2d 39, 255 N.E.2d 239 [1969] ; People v. Gresham , 151 A.D.3d 1175, 1177–1178, 57 N.Y.S.3d 532 [3d Dept. 2017] ).
Finally, defendant's prior history of mental health problems did not cast significant doubt on the voluntariness of the plea. "A history of prior mental illness or treatment does not itself call into question [a] defendant's competence," and there is no indication in the record that defendant was unable to understand the plea proceedings or that he was mentally incompetent at the time he entered his guilty plea ( People v. Robinson , 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814 [4th Dept. 2007], lv denied 9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [2007] [internal quotation marks omitted]; see Williams , 124 A.D.3d at 1286, 999 N.Y.S.2d 642 ). During the plea colloquy, defendant denied suffering from any mental health problems at that time and, in general, "defendant's responses to [County C]ourt's inquiries appeared to be informed, competent and lucid" ( People v. Young , 66 A.D.3d 1445, 1446, 885 N.Y.S.2d 860 [4th Dept. 2009], lv denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [2009] ; see People v. Shackelford , 100 A.D.3d 1527, 1528, 954 N.Y.S.2d 336 [4th Dept. 2012], lv denied 21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284 [2013] ).