PEOPLE v. CARBONEL (2002)

 On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02[1] ), defendant contends that County Court erred in accepting his plea and in thereafter sentencing him without sua sponte ordering a competency examination pursuant to CPL 730.30.   We reject that contention.  “A defendant is presumed competent * * *, and the court is under no obligation to issue an order of examination * * * unless it has ‘reasonable ground * * * to believe that the defendant [may be] an incapacitated person’ ” (People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260).   Although a discharge summary from a hospital indicated that defendant had a history of mental illness in the years 1980 and 1999, that prior history “does not in itself call into question defendant's competence” at the time of the plea or at sentencing, both of which occurred over a year after the last reported episode of mental illness in 1999 (People v. Tortorici, 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80;  see People v. Gelikkaya, 84 N.Y.2d 456, 459-460, 618 N.Y.S.2d 895, 643 N.E.2d 517).  “There is no indication in the record that defendant was mentally incompetent at the time he entered his guilty plea” or at sentencing (People v. Dover, 227 A.D.2d 804, 805, 642 N.Y.S.2d 438, lv. denied 88 N.Y.2d 984, 649 N.Y.S.2d 390, 672 N.E.2d 616).   Defendant exhibited no delusional behavior at the time of the plea or at sentencing (see People v. Graham, 272 A.D.2d 479, 480, 708 N.Y.S.2d 336, lv. denied 95 N.Y.2d 865, 715 N.Y.S.2d 220, 738 N.E.2d 368), and 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) (Gelikkaya, 84 N.Y.2d at 460, 618 N.Y.S.2d 895, 643 N.E.2d 517;  see Tortorici, 92 N.Y.2d at 767, 686 N.Y.S.2d 346, 709 N.E.2d 87;  cf.   People v. Bangert, 22 N.Y.2d 799, 800, 292 N.Y.S.2d 900, 239 N.E.2d 644).   Instead, defendant answered all of the court's questions and his “answers were in all respects appropriate, showing no indication of mental impairment requiring a competency hearing” (Dover, 227 A.D.2d at 805, 642 N.Y.S.2d 438).   Finally, the sentence is neither unduly harsh nor severe.

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

MEMORANDUM: