Opinion
890 KA 16–01906
10-04-2019
The PEOPLE of the State of New York, Respondent, v. Sebastian VAZQUEZ, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of assault in the first degree ( Penal Law § 120.10[1] ), defendant contends that his plea was not knowing, voluntary and intelligent and that Supreme Court erred in denying his motion to withdraw the plea. We affirm.
Defendant's contention that his plea was involuntary because he suffered from a mental disease or defect that negated an element of the crime is not preserved for our review because he did not move to withdraw his plea or to vacate the judgment of conviction on that ground, and this case does not fall within the rare exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We decline to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Although defendant preserved his further contention that his plea was involuntary due to his alleged mental deficiencies and drug use by moving to withdraw the plea on the ground that those conditions led to his purported lack of understanding of the plea proceedings (see People v. Jackson, 163 A.D.3d 1273, 1274, 80 N.Y.S.3d 735 [3d Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 119, 113 N.E.3d 953 [2018] ), the court did not err in denying the motion without a hearing inasmuch as those allegations were belied by defendant's statements and actions during the proceedings (see People v. Lewicki, 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ; People v. Watkins, 107 A.D.3d 1416, 1417, 966 N.Y.S.2d 637 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] ).
Contrary to defendant's further contention, we conclude that the plea was not "rendered involuntary by [the court's] initial reluctance to accept the plea agreement. Courts are ‘not required to accept [a] defendant's ... guilty plea merely because the plea bargain had been found acceptable to both the prosecution and defense’ " ( People v. Russell, 55 A.D.3d 1314, 1315, 864 N.Y.S.2d 587 [4th Dept. 2008], lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 [2009] ). Here, inasmuch as defendant's initial statements to the court indicated that he did not understand the proceedings, the court properly permitted him to discuss the matter with defense counsel and, after a discussion with "defense counsel concerning [the sentencing parameters of the plea], defendant proceeded with the colloquy with no further indication of any confusion" ( People v. Ernst, 144 A.D.3d 1605, 1607, 40 N.Y.S.3d 691 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ).
Defendant further contends that the court abused its discretion in failing to sua sponte order a competency evaluation pursuant to CPL article 730. We reject that contention. "Ordering a competency examination under CPL 730.30(1) lies within the sound discretion of the trial court ... A defendant is presumed to be competent ..., and the court is under no obligation to issue an order of examination ... unless it has ‘reasonable ground[s] ... to believe that the defendant was an incapacitated person’ " ( People v. Morgan, 87 N.Y.2d 878, 879–880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ). Here, inasmuch as "[n]othing on the face of the record demonstrates that defendant lacked a rational understanding of the nature and consequences of his plea" ( People v. Karlsen, 147 A.D.3d 1466, 1468, 47 N.Y.S.3d 584 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ), the court had no duty to inquire into defendant's mental capacity to plead guilty (see People v. Thomas, 139 A.D.3d 986, 986–987, 31 N.Y.S.3d 591 [2d Dept. 2016], lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ).
We reject defendant's contention that the court erred in failing to substitute counsel in place of his second assigned attorney. His request for that attorney to be relieved consisted of conclusory assertions of ineffectiveness of counsel, which were insufficient to require any inquiry by the court (see People v. Porto, 16 N.Y.3d 93, 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; Lewicki, 118 A.D.3d at 1329, 987 N.Y.S.2d 755 ). Moreover, defendant's contention that his second assigned attorney had a conflict of interest lacks merit because that contention is based on events that did not occur until after the court denied that request.
Contrary to defendant's further contention, the court properly refused to suppress the showup identification of him by an eyewitness to the crime. Prior to that showup identification, the police conducted a showup procedure with the victim, which was reasonable under the circumstances because it was conducted in "geographic and temporal proximity to the crime" ( People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] ; see People v. Kirkland, 49 A.D.3d 1260, 1260–1261, 856 N.Y.S.2d 339 [4th Dept. 2008], lv denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451 [2008], cert denied 555 U.S. 1181, 129 S.Ct. 1331, 173 L.Ed.2d 603 [2009] ; People v. Davis, 48 A.D.3d 1120, 1122, 851 N.Y.S.2d 320 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ). Defendant's contention that the identification procedure with the eyewitness was unnecessary lacks merit. That identification procedure, like the identification procedure with the victim, took place in spatial and temporal proximity to the crime (see People v. Johnson, 164 A.D.3d 1593, 1594 [4th Dept. 2018], lv denied 32 N.Y.3d 1173, 97 N.Y.S.3d 581, 121 N.E.3d 208 [2019] ; cf. People v. Knox, 170 A.D.3d 1648, 1649–1650, 96 N.Y.S.3d 811 [4th Dept. 2019] ), and it was also conducted "in the course of a ‘continuous, ongoing investigation’ " ( People v. Lewis, 97 A.D.3d 1097, 1098, 947 N.Y.S.2d 745 [4th Dept. 2012], lv denied 19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012], quoting Brisco, 99 N.Y.2d at 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 ).
Finally, the sentence is not unduly harsh or severe.