PEOPLE v. BAGLEY (2006)

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered November 15, 2005, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fifth degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to a reduced charge of criminal sale of a controlled substance in the fifth degree, waiving his right to appeal.   He was thereafter sentenced as a second felony offender to the agreed-upon prison term of two years, with two years of postrelease supervision.   Defendant now appeals.

 Initially, defendant's challenge to the factual sufficiency of the plea allocution is precluded by the voluntary waiver of his right to appeal (see People v. Alexander, 31 A.D.3d 885, 886, 817 N.Y.S.2d 786 [2006];  People v. Feller, 25 A.D.3d 881, 807 N.Y.S.2d 689, lv. denied 6 N.Y.3d 812, 812 N.Y.S.2d 452, 845 N.E.2d 1283 [2006] ).   In addition, his failure to move to withdraw the plea or vacate the judgment of conviction renders the issue as to the voluntariness of his plea unpreserved for our review (see People v. Bennett, 30 A.D.3d 631, 631, 817 N.Y.S.2d 399 [2006], lv. denied 7 N.Y.3d 809, 822 N.Y.S.2d 484, 855 N.E.2d 800 [2006];  People v. Jones, 30 A.D.3d 633, 633, 816 N.Y.S.2d 573 [2006], lv. denied 7 N.Y.3d 849, 823 N.Y.S.2d 778, 857 N.E.2d 73 [2006] ) and the exception to the preservation rule is not applicable inasmuch as defendant made no statements inconsistent with his guilt (see People v. Campbell, 29 A.D.3d 1083, 1083-1084, 813 N.Y.S.2d 831 [2006], lv. denied 7 N.Y.3d 786, 821 N.Y.S.2d 815, 854 N.E.2d 1279;  People v. Evans, 27 A.D.3d 905, 906-907, 810 N.Y.S.2d 590 [2006], lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006] ).   In any event, defendant's responses to County Court's questions during the plea colloquy established the elements of the crime and it was not necessary for defendant to personally recite the underlying facts (see People v Alexander, supra;  People v. Mahar, 12 A.D.3d 715, 716, 783 N.Y.S.2d 705 [2004] ).

 We also find that, although defendant has some mental health difficulties for which he is receiving medication, the record as a whole reflects that he has demonstrated an ability to manage his mental health symptoms and he was capable of understanding the proceedings against him.   As such, a competency hearing, which defense counsel did not request, was not required (see People v. Ferrer, 16 A.D.3d 913, 914, 791 N.Y.S.2d 721 [2005], lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669 [2005];  People v. Kane, 6 A.D.3d 876, 877, 774 N.Y.S.2d 451 [2004] ).   Finally, defendant's claim that his sentence should be modified in the interest of justice is foreclosed given his valid waiver of his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Alexander, supra at 886, 817 N.Y.S.2d 786).

ORDERED that the judgment is affirmed.

MUGGLIN, J.

MERCURE, J.P., SPAIN, ROSE and KANE, JJ., concur.