PEOPLE v. GRANDIN (2009)

 On appeal from a judgment convicting him, upon his plea of guilty, of two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[2][b] ), defendant contends that he was denied effective assistance of counsel based on his attorney's failure to request a mental competency examination pursuant to CPL article 730.   That contention does not survive either the plea of guilty or the waiver by defendant of the right to appeal because he failed to demonstrate that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” (People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814, lv. denied 9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [internal quotation marks omitted] ).   Moreover, by failing to move to withdraw his plea of guilty or to vacate the judgment of conviction on that ground, defendant failed to preserve that contention for our review (see People v. Hall, 50 A.D.3d 1467, 1468-1469, 856 N.Y.S.2d 402, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101).   We reject the further contention of defendant that County Court abused its discretion in failing sua sponte to order a mental competency examination (see People v. Jermain, 56 A.D.3d 1165, 867 N.Y.S.2d 326, lv. denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445).   Defendant's challenge to the severity of the sentence is encompassed by the waiver of the right to appeal (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

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

MEMORANDUM: