THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHRISTOPHER HAWKINS DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34[1] ) and attempted promoting prison contraband in the first degree (§§ 110.00, 205.25[2] ), defendant contends that County Court erred in denying his motion seeking to withdraw his plea on the ground that he was unable to comprehend the plea proceedings and requesting a competency examination pursuant to CPL article 730.   Although the contentions of defendant implicate the voluntariness of his plea and thus survive his waiver of the right to appeal (see People v. Stoddard, 67 AD3d 1055;  People v. Bennefield, 306 A.D.2d 911), we nevertheless conclude that they are without merit.

“[A] defendant is presumed to be competent” (People v. Tortorici, 92 N.Y.2d 757, 765, cert denied 528 U.S. 834;  see People v. Wilcox, 45 AD3d 1320, lv denied 10 NY3d 772), and “the court is under no obligation to issue an order of examination ․ unless it has [a] ‘reasonable ground ․ to believe that the defendant [is] an incapacitated person’ “ (People v. Morgan, 87 N.Y.2d 878, 880;  see People v. Williams, 35 AD3d 1273, 1274, lv denied 8 NY3d 928).  “The determination of whether to order a competency hearing lies within the sound discretion of the ․ court” (Tortorici, 92 N.Y.2d at 766;  see Morgan, 87 N.Y.2d at 879-880;  Williams, 35 AD3d at 1274).

Here, the record supports the court's conclusion that defendant's complaints of mental illness were invented by defendant in order to avoid the consequences of the plea (see People v. Powell, 293 A.D.2d 423, lv denied 98 N.Y.2d 700;  People v. Wiggins, 191 A.D.2d 364, 365, lv denied 81 N.Y.2d 1021;  People v. Clickner, 128 A.D.2d 917, 918-919, lv denied 70 N.Y.2d 644).   Indeed, the People presented uncontradicted evidence that defendant feigned mental illness in an attempt to manipulate the criminal justice system (see generally Powell, 293 A.D.2d 423;  People v. Farrell, 184 A.D.2d 396, lv denied 80 N.Y.2d 974, 975).

Finally, we note that, although the sentence and commitment contains the correct Penal Law citation for criminal sale of a controlled substance in the fourth degree, it incorrectly describes the Penal Law citation as both “CSCS 4th” and “CPCS 4th.”   The sentence and commitment must therefore be amended to correct the clerical error and to reflect that defendant was convicted of criminal sale of a controlled substance in the fourth degree (see generally People v. Saxton, 32 AD3d 1286).

Patricia L. Morgan

Clerk of the Court