PEOPLE v. MARINO (2004)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Corso, J.), rendered December 12, 2002, convicting him of attempted robbery in the first degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court's determination that the defendant was fit to proceed is accorded great deference (see People v. Abreu, 303 A.D.2d 685, 756 N.Y.S.2d 772).   The Supreme Court properly concluded that the defendant was competent to stand trial (see CPL 730.10).   The People sustained their burden of proving by a preponderance of the evidence that the defendant was not an incapacitated person (see People v. Mendez, 1 N.Y.3d 15, 19, 769 N.Y.S.2d 162, 801 N.E.2d 382;  People v. Wood, 251 A.D.2d 521, 673 N.Y.S.2d 600).

The Supreme Court properly denied the defendant's requests to withdraw his plea (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170).   Moreover, the defendant's contention that he was denied the effective assistance of counsel was unsupported by the record (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Soto, 245 A.D.2d 398, 667 N.Y.S.2d 756;  People v. Torres, 183 A.D.2d 862, 584 N.Y.S.2d 587)

 The defendant's belated contention that he was entitled to a CPL 400.15(5) hearing concerning the predicate felony statements was unpreserved for appellate review (see CPL 470.05[2] ).   In addition, the claim is not properly before this court because it was raised for the first time in the defendant's reply brief (see People v. Kalaj, 247 A.D.2d 633, 634, 669 N.Y.S.2d 358).