PEOPLE v. GUNN (2006)

 Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the first degree (Penal Law § 125.27[1][a] [vii];  [b] ) and attempted murder in the first degree (§§ 110.00, 125.27 [1][a][vii];  [b] ).  Although defendant contends that the plea was not knowingly or voluntarily entered because he did not recite the underlying facts of the crimes, he is in effect challenging the factual sufficiency of the plea allocution (see People v. White, 24 A.D.3d 1220, 805 N.Y.S.2d 917, lv. denied 6 N.Y.3d 820, 812 N.Y.S.2d 459, 845 N.E.2d 1290).   That challenge is encompassed by the waiver of the right to appeal (see id.), and defendant also failed to preserve that challenge for our review (see People v. Spikes, 28 A.D.3d 1101, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809;  People v. Bland, 27 A.D.3d 1052, 810 N.Y.S.2d 718, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674;  White, 24 A.D.3d at 1220, 805 N.Y.S.2d 917).   The plea allocution does not clearly cast significant doubt upon defendant's guilt or otherwise call into question the voluntariness of the plea, and thus the plea allocution does fall within the rare case exception to the preservation doctrine (see People v. Farnsworth, 32 A.D.3d 1176, 820 N.Y.S.2d 832, lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143;  People v. Oltz, 1 A.D.3d 934, 767 N.Y.S.2d 753, lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289).  “There is no requirement that defendant personally recite the facts underlying the crime [s], and his responses to the questions of [County C]ourt during the plea colloquy did not negate any element of the offense[s] or otherwise cast any doubt on defendant's guilt” (Spikes, 28 A.D.3d at 1102, 813 N.Y.S.2d 602).

 Defendant further contends in his pro se supplemental brief that his guilty plea was coerced by the threat of the death penalty, citing Matter of Hynes v. Tomei, 92 N.Y.2d 613, 684 N.Y.S.2d 177, 706 N.E.2d 1201, cert. denied 527 U.S. 1015, 119 S.Ct. 2359, 144 L.Ed.2d 254.   The decision of the Court of Appeals in Hynes does not apply to “pleas of guilty to first degree murder when no notice of intent to seek the death penalty is pending, since defendants in that situation face the same maximum sentence regardless of how they are convicted” (id. at 629, 684 N.Y.S.2d 177, 706 N.E.2d 1201).   Here, there was no notice of intent to seek the death penalty pending at the time defendant pleaded guilty, and we thus reject defendant's contention.   We also reject the contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel based on defense counsel's failure to request a competency hearing.  “A defendant is presumed competent and is not entitled, as a matter of law, to a competency hearing unless the court has reasonable grounds to believe that, because of mental disease or defect, the defendant is incapable of understanding the proceedings against him or her” (People v. Courcelle, 15 A.D.3d 688, 689, 788 N.Y.S.2d 720, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677).   There is no indication in the record that defendant was “incapable of understanding the proceedings against him” (id.;   see People v. Keebler, 15 A.D.3d 724, 726, 789 N.Y.S.2d 547, lv. denied 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327), and it therefore cannot be said that defense counsel's failure to request a competency hearing constituted ineffective assistance of counsel (see Keebler, 15 A.D.3d at 726-727, 789 N.Y.S.2d 547;  People v. Comfort, 278 A.D.2d 872, 873-874, 718 N.Y.S.2d 751).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: