PEOPLE v. ROBINSON (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Joseph Cawley, J.), rendered December 3, 2021, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

In satisfaction of a multicount indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree and agreed to waive his right to appeal.  In accordance with the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of five years, to be followed by five years of postrelease supervision.  Defendant appeals.

Defendant contends that he was deprived of the effective assistance of counsel when defense counsel took a position adverse to him by defense counsel recounting his representation in response to defendant's general complaints about counsel's performance.  To the extent that defendant asserts that this impacted the voluntariness of his plea, which contention is not precluded by the unchallenged appeal waver, it is unpreserved for our review given that defendant did not make an appropriate postallocution motion, and the narrow exception to the preservation requirement is not implicated here (see People v. Penk, 220 A.D.3d 990, 991, 198 N.Y.S.3d 243 [3d Dept. 2023];  People v. Johnson, 194 A.D.3d 1267, 1269, 147 N.Y.S.3d 258 [3d Dept. 2021]).  Although defendant also contends that new counsel should have been assigned, defense counsel did not become an adverse witness against defendant in responding to defendant's general complaints nor did defense counsel's comments explaining his performance create a conflict of interest warranting the assignment of new counsel (see People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [2015];  People v. Nelson, 7 N.Y.3d 883, 884, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006];  People v. Howard, 224 A.D.3d 1359, 1361, 204 N.Y.S.3d 847 [4th Dept. 2024], affd ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00184 [Jan. 14, 2025];  People v. Toledo, 144 A.D.3d 1332, 1334, 40 N.Y.S.3d 680 [3d Dept. 2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017]).

Defendant also contends that, given his statements at court appearances and his voluminous pro se communications sent to County Court and others, the court erred in not directing, on its own initiative, a competency examination pursuant to CPL 730.30.  Initially, we note that defendant's challenge to his competency to enter the guilty plea is not precluded by his guilty plea or his unchallenged appeal waiver (see People v. Hansen, 95 N.Y.2d 227, 230–231 n 2, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];  People v. Armlin, 37 N.Y.2d 167, 168–169, 371 N.Y.S.2d 691, 332 N.E.2d 870 [1975]), but is similarly unpreserved absent an appropriate postallocution motion, and the narrow exception to the preservation requirement is inapplicable (see People v. Lomack, 219 A.D.3d 1646, 1647–1648, 198 N.Y.S.3d 236 [3d Dept. 2023], lv denied 40 N.Y.3d 1040, 200 N.Y.S.3d 764, 223 N.E.3d 1240 [2023];  People v. Williams, 189 A.D.3d 1978, 1980, 138 N.Y.S.3d 690 [3d Dept. 2020], lv denied 37 N.Y.3d 1165, 160 N.Y.S.3d 686, 181 N.E.3d 1114 [2022]).  In any event, were we to consider the issue, we would find no abuse of discretion in the court accepting defendant's guilty plea as there is nothing in the record, including defendant's statements and submissions to the court, indicating that defendant was mentally incompetent at the time of the plea (see CPL 730.30[1];  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. Lomack, 219 A.D.3d at 1648, 198 N.Y.S.3d 236).

ORDERED that the judgment is affirmed.

Lynch, J.

Garry, P.J., Clark, Fisher and Powers, JJ., concur.