PEOPLE v. TROTTER (2006)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 9, 2005, convicting defendant upon his plea of guilty of the crime of conspiracy in the second degree.

In the spring of 2005, defendant pleaded guilty to conspiracy in the second degree and was sentenced to 6 to 18 years in prison.   In the plea colloquy, defendant admitted to plotting the murder of a woman he had been accused of raping in order to prevent her from testifying.   Although defendant agreed to waive his right to appeal in conjunction with his plea, he now appeals, claiming that County Court should have ordered a competency hearing prior to accepting his plea, that his plea was otherwise involuntary and his sentence was excessive.

 As to the issue of defendant's competency, it is well established that “ ‘[a] defendant is presumed to be competent and is not entitled, as a matter of law, to a competency hearing unless the court has reasonable grounds to believe that, because of mental disease or defect, the defendant is incapable of assisting in his or her own defense or of understanding the proceedings against him [or her]’ ” (People v. Medina, 249 A.D.2d 694, 694, 671 N.Y.S.2d 550 [1998], quoting People v. Planty, 238 A.D.2d 806, 807, 657 N.Y.S.2d 109 [1997], lv. denied 89 N.Y.2d 1098, 660 N.Y.S.2d 392, 682 N.E.2d 993 [1997];  accord People v. Surdis, 23 A.D.3d 841, 843, 805 N.Y.S.2d 433 [2005], lv. denied 6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289 [2006] ).   Here, given defendant's coherent responses to County Court's questioning during the plea colloquy and his lucid statements at the time of sentencing, we cannot conclude that County Court abused its discretion (see People v. Morgan, 87 N.Y.2d 878, 879-880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ) in not mandating a competency hearing, irrespective of the fact that the court was made aware of defendant's past mental health issues in the presentence investigation report (see People v. Tortorici, 92 N.Y.2d 757, 765, 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];  People v. Surdis, supra at 843, 805 N.Y.S.2d 433).

 Defendant next claims that his guilty plea was rendered involuntary by his trial counsel's inaccurate assurances that the sentence imposed would be subject to reduction on appeal.   Inasmuch as defendant has not moved to withdraw his plea or vacate the judgment of conviction, that claim is unpreserved for this Court's review (see People v. Champion, 20 A.D.3d 772, 772-773, 798 N.Y.S.2d 567 [2005];  People v. Fulford, 296 A.D.2d 661, 662, 745 N.Y.S.2d 596 [2002] ).   Regardless, upon our review of the record, we find the claim to be unsupported and conclude that the plea was knowing, intelligent and voluntary (see People v. Hodges, 13 A.D.3d 979, 980, 786 N.Y.S.2d 668 [2004];  see also People v. Ramos, 63 N.Y.2d 640, 642-643, 479 N.Y.S.2d 510, 468 N.E.2d 692 [1984] ).

 Turning to defendant's argument concerning his sentence, we must first address defendant's purported waiver of appeal.   As the Court of Appeals recently stated,

“[w]hen a trial court characterizes an appeal as one of the many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights.   The record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

In the instant case, County Court asked defendant during the plea allocution if he understood that he was giving up his “right to appeal this process.”   No further colloquy with defendant “explaining the right relinquished by an appeal waiver” (id. at 253, 811 N.Y.S.2d 623, 844 N.E.2d 1145) appears in the record.   Assuming that this inquiry was insufficient to fully apprise defendant of the discrete rights being relinquished by operation of the appeal waiver (compare id. at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 affg. People v. Nicholson, 15 A.D.3d 237, 789 N.Y.S.2d 153 [2005];  see generally People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ), there exists no bar to defendant's invocation of this Court's interest of justice jurisdiction concerning his sentence (see People v. Lopez, supra at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Kemp, 10 A.D.3d 811, 781 N.Y.S.2d 919 [2004], lv. denied 4 N.Y.3d 765, 792 N.Y.S.2d 8, 825 N.E.2d 140 [2005] ).   However, having found no extraordinary circumstances or abuse of discretion on the part of County Court, and in light of the nature of the crime committed, we decline to reduce the bargained-for sentence in the interest of justice (see CPL 470.15[6][b];  People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992];  People v. McCarthy, 23 A.D.3d 919, 919-920, 804 N.Y.S.2d 151 [2005] ).

ORDERED that the judgment is affirmed.

CARDONA, P.J.

CREW III, SPAIN, CARPINELLO and LAHTINEN, JJ., concur.