People v. Taylor

194 A.D.3d 1264

144 N.Y.S.3d 409 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Timothy TAYLOR, Appellant.

110728

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 21, 2021

Decided and Entered: May 20, 2021

Aaron A. Louridas, Delmar, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Lynch, J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered June 26, 2018, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.

Pursuant to a negotiated agreement, defendant waived indictment and agreed to be prosecuted by a superior court information charging him with one count of attempted burglary in the third degree. Defendant pleaded guilty to that crime and was required, as part of the plea agreement, to waive his right to appeal. Consistent with the terms of the agreement, County Court sentenced defendant, as an acknowledged second felony offender, to a prison term of 1½ to 3 years. Defendant appeals.

We affirm. Defendant argues that his guilty plea was not knowing, voluntary and intelligent because his psychiatric condition rendered him incapable of understanding the proceedings. He further contends that he was deprived of the effective assistance of counsel based upon counsel's failure to request a competency exam pursuant to CPL article 730. These claims impact upon the voluntariness of his plea and, thus, survive any appeal waiver (see People v. Davis, 150 A.D.3d 1396, 1397, 54 N.Y.S.3d 723 [2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017] ), but were not preserved by a postallocution motion (see CPL 220.60[3] ; People v. McClain, 165 A.D.3d 1345, 1346, 86 N.Y.S.3d 230 [2018] ; People v. Park, 159 A.D.3d 1132, 1134, 72 N.Y.S.3d 242 [2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ). Upon consideration, we are not persuaded that his statements regarding his mental health cast doubt on his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow 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] ; People v. Gumbs, 169 A.D.3d 1119, 1119, 92 N.Y.S.3d 758 [2019], lv denied 33 N.Y.3d 1105, 106 N.Y.S.3d 693, 130 N.E.3d 1303 [2019] ), or that his request for corrective action in the interest of justice is warranted (see CPL 470.15[3] ).

Were the issues properly before us, we would find that a review of the plea proceedings, including defendant's participation, fails to demonstrate that his mental health "interfered with his ability to understand the proceedings or impacted the voluntary nature of his plea" ( People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019] ; see People v. Dolison, 189 A.D.3d 1779, 1780–1781, 136 N.Y.S.3d 547 [2020] ; People v. Park, 159 A.D.3d at 1134, 72 N.Y.S.3d 242 ). Defense counsel, " ‘who was in the best position to assess defendant's capacity,’ " indicated that they had discussed defendant's mental health and saw no need to raise the issue of his fitness or to request a CPL 730.30 examination ( People v. Park, 159 A.D.3d at 1134, 72 N.Y.S.3d 242, quoting People v. Gelikkaya, 84 N.Y.2d 456, 460, 618 N.Y.S.2d 895, 643 N.E.2d 517 [1994] ). Thus, we would find that his guilty plea was knowing, voluntary and intelligent (see People v. Dolison, 189 A.D.3d at 1780–1781, 136 N.Y.S.3d 547 ) and reject his contention that counsel's failure to request a competency hearing constituted ineffective assistance (see People v. Park, 159 A.D.3d at 1134, 72 N.Y.S.3d 242 ; People v. White, 153 A.D.3d 1041, 1042, 60 N.Y.S.3d 584 [2017] ). Further, we find that County Court (Sira, J.) did not abuse its discretion in accepting his plea without holding a competency hearing (see People v. Chapman, 179 A.D.3d 1526, 1527, 119 N.Y.S.3d 343 [2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 25, 148 N.E.3d 489 [2020] ; People v. Park, 159 A.D.3d at 1134, 72 N.Y.S.3d 242 ).¹ To the extent that defendant relies on matters outside the record regarding, among other things, communications with counsel, they are more properly raised in a motion pursuant to CPL article 440 (see People v. Williams, 184 A.D.3d 1010, 1013–1014, 126 N.Y.S.3d 565 [2020], lv denied 35 N.Y.3d 1097, 131 N.Y.S.3d 300, 155 N.E.3d 793 [2020] ).

Defendant's challenge to his sentence as harsh and excessive is not precluded by the waiver of appeal, which we agree is invalid (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Avera, 192 A.D.3d 1382, 1382–1383, ––– N.Y.S.3d –––– [2021] ; People v. LaPierre, 189 A.D.3d 1813, 1815, 137 N.Y.S.3d 583 [2020], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 138, 167 N.E.3d 1273 [Mar. 29, 2021] ). Nonetheless, this issue is moot as defendant has already served his sentence and was recently released upon reaching his maximum expiration date (see People v. Kehn, 173 A.D.3d 1564, 1564, 101 N.Y.S.3d 666 [2019] ; People v. Evans, 159 A.D.3d 1226, 1227, 72 N.Y.S.3d 650 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ).

Lynch, J.P., Pritzker and Reynolds Fitzgerald, JJ., concur.

ORDERED that the judgment is affirmed.

1 The argument...