PEOPLE v. JERMAIN (2008)

 On appeal from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20[1] ), defendant contends that County Court abused its discretion in failing sua sponte to order a second competency hearing before he entered his guilty plea.   We reject that contention (see People v. Tortorici, 92 N.Y.2d 757, 765-766, 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;  People v. Morgan, 87 N.Y.2d 878, 879-880, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Gensler, 72 N.Y.2d 239, 247, 532 N.Y.S.2d 72, 527 N.E.2d 1209, cert. denied 488 U.S. 932, 109 S.Ct. 323, 102 L.Ed.2d 341;  People v. Garrasi, 302 A.D.2d 981, 982-983, 754 N.Y.S.2d 799, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 4, 793 N.E.2d 418).   The court “had the opportunity to interact with and observe defendant ․ [, and thus] the court had adequate opportunity to properly assess defendant's competency” (People v. Bolarinwa, 258 A.D.2d 827, 831, 687 N.Y.S.2d 442, lv. denied 93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934;  see Garrasi, 302 A.D.2d at 982-983, 754 N.Y.S.2d 799).  “Moreover, it is noted that defense counsel did not request a hearing and, as it has been observed, [defense] counsel was in the best position to assess defendant's capacity and request an examination pursuant to CPL 730. 30(2)” (People v. Ferrer, 16 A.D.3d 913, 914, 791 N.Y.S.2d 721, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669;  see People v. Gelikkaya, 84 N.Y.2d 456, 460, 618 N.Y.S.2d 895, 643 N.E.2d 517).   In view of our determination with respect to defendant's competency, we further reject the contention of defendant that his waiver of the right to appeal was invalid based upon his alleged incompetency (see People v. Nudd, 53 A.D.3d 1115, 861 N.Y.S.2d 879).   In addition, to the extent that his contention that he was denied effective assistance of counsel based on defense counsel's failure to request a second competency hearing survives the plea and waiver of the right to appeal (see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), we likewise reject that contention (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   The record is devoid of any indication that defense counsel should have requested a second competency examination (see CPL 730.30[1];  Morgan, 87 N.Y.2d at 880, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Douglas, 26 A.D.3d 522, 524, 809 N.Y.S.2d 610, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71).   The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  Nudd, 53 A.D.3d 1115, 861 N.Y.S.2d 879).

 Finally, inasmuch as defendant failed to obtain leave to appeal from the order denying his CPL 440.10 motion, his contentions with respect to the denial of that motion are not properly before us (see CPL 450.15[1];  460.15;  People v. Acosta, 19 A.D.3d 1041, 796 N.Y.S.2d 289, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155;  People v. Brown, 277 A.D.2d 987, 716 N.Y.S.2d 632, lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214).

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

MEMORANDUM.