PEOPLE v. ARVELO (2005)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at competency hearing;  Harold Beeler, J. at further competency proceedings, dismissal motion, plea and sentence), rendered April 18, 2001, convicting defendant of attempted robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

 The record establishes that defendant was mentally competent at the time of his plea and sentence (see Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 [1966] ).   Shortly before the plea, defendant was examined pursuant to CPL article 730 and the doctors' finding of competency was confirmed by the plea court on consent.   In addition, there had been a long history of competency proceedings in this case, including a thorough competency hearing held less than two years before the plea, and the record fully supports the hearing court's finding that defendant had been fit to proceed at that time (see People v. McMillan, 212 A.D.2d 445, 446, 622 N.Y.S.2d 935 [1995], lv. denied 85 N.Y.2d 976, 629 N.Y.S.2d 736, 653 N.E.2d 632 [1995] ).

 We conclude that there was nothing before the plea court that would obligate it to conduct a competency hearing on its own motion (see CPL 730.30 [2];  People v. Tortorici, 92 N.Y.2d 757, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999] ).   We note that there is extensive evidence in the record that defendant feigns or exaggerates psychiatric symptoms.   Defendant's argument that the psychiatrists relied on tests that should have been subjected to scrutiny as to their general acceptance, reliability and other such matters (see People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994] ) is unpreserved (People v. Angelo, 88 N.Y.2d 217, 223, 644 N.Y.S.2d 460, 666 N.E.2d 1333 [1996] ), and unavailing.   We have considered and rejected defendant's remaining arguments concerning the competency issue.

 The plea allocution record establishes that defendant knowingly, intelligently and voluntarily pleaded guilty.  “Nothing in the plea allocution record itself refers to an intoxication defense or casts doubt on the voluntariness of the plea, and the court was not required to make a sua sponte inquiry regarding defendant's mention of intoxication on other occasions” (People v. Fiallo, 6 A.D.3d 176, 177, 777 N.Y.S.2d 297 [2004], lv. denied 3 N.Y.3d 640, 782 N.Y.S.2d 411, 816 N.E.2d 201 [2004] [citations omitted] ).   In any event, there is no suggestion in the record that defendant had a viable intoxication defense.

 By pleading guilty, defendant forfeited his right to appellate review of the court's denial of his CPL 210.40 motion to dismiss the indictment in furtherance of justice (see e.g. People v. Tavares, 273 A.D.2d 707, 710 N.Y.S.2d 256 [2000], lv. denied 95 N.Y.2d 939, 721 N.Y.S.2d 615, 744 N.E.2d 151 [2000];  People v. Travis, 205 A.D.2d 648, 613 N.Y.S.2d 252 [1994], lv. denied 84 N.Y.2d 940, 621 N.Y.S.2d 537, 645 N.E.2d 1237 [1994] ).   In any event, the motion was properly denied (see People v. Tavares, 273 A.D.2d at 707-708, 710 N.Y.S.2d 256).