PEOPLE v. BROWN (2004)

 Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated as a class E felony (Vehicle and Traffic Law former § 1192[2];  § 1193[1][c][i] ).   County Court did not err in failing to order sua sponte a competency examination pursuant to CPL 730.30(1).   Although defendant stated at the plea proceeding that he had suffered a severe concussion and was taking unspecified medication that affected his ability “to understand what's going on,” he nevertheless stated that he understood that he was entering a plea (see People v. Murray, 255 A.D.2d 997, 682 N.Y.S.2d 319, lv. denied 93 N.Y.2d 975, 695 N.Y.S.2d 61, 716 N.E.2d 1106;  People v. Truss, 187 A.D.2d 742, 591 N.Y.S.2d 42, lv. denied 81 N.Y.2d 848, 595 N.Y.S.2d 748, 611 N.E.2d 787).   In addition, defendant asked relevant questions during that proceeding and responded appropriately to the court's questions (see People v. Planty, 238 A.D.2d 806, 807, 657 N.Y.S.2d 109, lv. denied 89 N.Y.2d 1098, 660 N.Y.S.2d 392, 682 N.E.2d 993;  People v. Hall, 168 A.D.2d 310, 310-311, 562 N.Y.S.2d 641, lv. denied 77 N.Y.2d 906, 569 N.Y.S.2d 938, 572 N.E.2d 621).   We further note that “defense counsel, ‘who was in the best position to assess defendant's capacity,’ did not raise the issue of defendant's fitness to proceed or request an examination pursuant to CPL 730.30(2)” (People v. Carbonel, 296 A.D.2d 858, 858, 745 N.Y.S.2d 367, quoting People v. Gelikkaya, 84 N.Y.2d 456, 460, 618 N.Y.S.2d 895, 643 N.E.2d 517).

 Defendant failed to move to withdraw the plea or vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea was otherwise not knowingly, intelligently and voluntarily entered (see People v. Negron, 280 A.D.2d 780, 721 N.Y.S.2d 149, lv. denied 96 N.Y.2d 832, 729 N.Y.S.2d 453, 754 N.E.2d 213).   Moreover, defendant failed to preserve for our review his contention that the court erred in considering prior arrests not resulting in convictions when it imposed sentence (see People v. Woodworth, 278 A.D.2d 864, 718 N.Y.S.2d 689, lv. denied 96 N.Y.2d 870, 730 N.Y.S.2d 45, 754 N.E.2d 1127).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, the waiver of the right to appeal encompasses defendant's contention that the sentence is unduly harsh or severe (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416).

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

MEMORANDUM: