PEOPLE v. ORTIZ (2007)

Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of manslaughter in the first degree (Penal Law § 125.20[1] ).   We note at the outset that the plea proceedings and sentencing were conducted by County Court and that the hearings that preceded the plea were conducted by Supreme Court (Joseph S. Forma, J.).

 We conclude that the evidence presented at the competency hearing conducted by Supreme Court pursuant to CPL 730.30 supports the court's determination that defendant was at that time fit to proceed (see People v. Brown, 4 A.D.3d 886, 886-887, 772 N.Y.S.2d 143, lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198;  see also People v. Mendez, 1 N.Y.3d 15, 20, 769 N.Y.S.2d 162, 801 N.E.2d 382).   Contrary to defendant's contention, the court complied with the requirements of CPL 730.30 and was not required to order additional competency examinations.   Nothing in the record suggests that defendant's condition deteriorated between the time of the psychiatric examinations and the time of the competency hearing (see People v. Lewis, 302 A.D.2d 322, 323, 758 N.Y.S.2d 1, lv. denied 100 N.Y.2d 540, 763 N.Y.S.2d 5, 793 N.E.2d 419) and, contrary to defendant's contention, the court did not fail to comply with CPL article 730 when it made an informal request for an update of defendant's condition from defendant's treating psychiatrist (see People v. Conforti, 263 A.D.2d 513, 695 N.Y.S.2d 99, lv. denied 94 N.Y.2d 878, 705 N.Y.S.2d 10, 726 N.E.2d 487;  People v. Sims, 217 A.D.2d 912, 629 N.Y.S.2d 923, lv. denied 87 N.Y.2d 851, 638 N.Y.S.2d 609, 661 N.E.2d 1391).

 We agree with defendant that his waiver of the right to appeal is invalid because County Court, in conducting the plea proceedings, did not “engage [him] in an adequate colloquy to ensure that the waiver ․ was a knowing and voluntary choice” (People v. Kemp, 255 A.D.2d 397, 397, 681 N.Y.S.2d 41).   Thus, the contention of defendant that Supreme Court erred in refusing to suppress his statements to the police is properly before us (cf. People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754).   Nevertheless, we reject that contention.   The record of the Huntley hearing supports the court's conclusions that defendant was not in custody before he made incriminatory statements (see People v. Flores, 23 A.D.3d 194, 195, 803 N.Y.S.2d 85, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 343, 844 N.E.2d 798;  People v. Rivera, 4 A.D.3d 131, 771 N.Y.S.2d 510, lv. denied 2 N.Y.3d 805, 781 N.Y.S.2d 304, 814 N.E.2d 476), Miranda warnings were properly given after such statements were made, and defendant validly waived his rights before making further statements (see People v. Zeigler, 299 A.D.2d 910, 911, 752 N.Y.S.2d 449, lv. denied 99 N.Y.2d 586, 755 N.Y.S.2d 723, 785 N.E.2d 745).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: