Opinion
745 KA 17-01377
10-08-2021
The PEOPLE of the State of New York, Respondent, v. Thomas B. NEWSOME, Defendant-Appellant.
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), FOR RESPONDENT.
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), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, 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 guilty plea, of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ). Defendant contends that his guilty plea was not knowing, voluntary, and intelligent. Defendant, however, failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Tapia , 158 A.D.3d 1079, 1080, 70 N.Y.S.3d 309 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ; People v. VanDeViver , 56 A.D.3d 1118, 1118, 867 N.Y.S.2d 586 [4th Dept. 2008], lv denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009], reconsideration denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ). This case does not fall within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant further contends that County Court erred in failing to order a competency hearing sua sponte. Although that contention need not be preserved for our review (see People v. Chapman , 179 A.D.3d 1526, 1527, 119 N.Y.S.3d 343 [4th Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 25, 148 N.E.3d 489 [2020] ; People v. Henderson , 162 A.D.3d 1507, 1508, 78 N.Y.S.3d 830 [4th Dept. 2018], lv denied 32 N.Y.3d 1004, 86 N.Y.S.3d 762, 111 N.E.3d 1118 [2018] ), we nevertheless reject it. We conclude that there is "no indication in the record that defendant was unable to understand the proceedings.... Rather, the record establishes that the court conducted a thorough plea colloquy and that [d]efendant's answers were in all respects appropriate, showing no indication of mental impairment requiring a competency hearing" ( People v. Roosevelt , 43 A.D.3d 1300, 1301, 842 N.Y.S.2d 639 [4th Dept. 2007], lv denied 9 N.Y.3d 1038, 852 N.Y.S.2d 24, 881 N.E.2d 1211 [2008] [internal quotation marks omitted]; see People v. Shannon , 189 A.D.3d 2165, 2166, 134 N.Y.S.3d 914 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 126, 167 N.E.3d 1261 [2021] ; People v. Wilcox , 45 A.D.3d 1320, 1320, 845 N.Y.S.2d 621 [4th Dept. 2007], lv denied 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269 [2008] ). Although defendant advised the court of his mental health issues, it is well established that "a history of psychiatric illness does not in itself call into question defendant's competence to proceed" ( Henderson , 162 A.D.3d at 1508, 78 N.Y.S.3d 830 [internal quotation marks omitted]; see 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] ).
To the extent that defendant's further contention that he was denied effective assistance of counsel survives his guilty plea (see People v. Barnes , 32 A.D.3d 1250, 1251, 821 N.Y.S.2d 541 [4th Dept. 2006] ), we reject that contention. On the record before us, we conclude that defendant "received an advantageous plea, and ‘nothing in the record casts doubt on the apparent effectiveness of’ " the attorneys who represented him ( People v. Shaw , 133 A.D.3d 1312, 1313, 19 N.Y.S.3d 449 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016], quoting People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; see People v. Spencer , 170 A.D.3d 1614, 1615, 94 N.Y.S.3d 503 [4th Dept. 2019], lv denied 37 N.Y.3d 974, 150 N.Y.S.3d 710, 172 N.E.3d 822 [2021] ).
Finally, we note that defendant was sentenced to the minimum term of incarceration authorized by law. Thus, contrary to defendant's contention, "that part of his ... sentence cannot be considered unduly harsh or severe" ( People v. Griffith , 181 A.D.3d 1170, 1172, 122 N.Y.S.3d 202 [4th Dept. 2020], lv denied 35 N.Y.3d 1045, 127 N.Y.S.3d 841, 151 N.E.3d 522 [2020] [internal quotation marks omitted]; see People v. Leggett , 101 A.D.3d 1694, 1695, 956 N.Y.S.2d 385 [4th Dept. 2012], lv denied 20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ). Also, the period of postrelease supervision imposed by the court is not unduly harsh or severe.