PEOPLE v. ORTIZ (2009)

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered March 28, 2003, convicting defendant upon his plea of guilty of two counts of the crime of rape in the second degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with two counts of the crime of rape in the second degree.   Defendant pleaded guilty to both counts and was sentenced pursuant to the plea agreement to a term of imprisonment of 2 to 6 years on each count, with the sentences to run concurrently.   On this appeal, defendant argues that County Court erred by failing to order a competency evaluation on its own motion.   We do not agree.

 “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, [he] is incapable of assisting in his ․ own defense or of understanding the proceedings against him” (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] [internal quotation marks and citations omitted];  see People v. Sebast, 32 A.D.3d 615, 615-616, 819 N.Y.S.2d 625 [2006], lv. denied 7 N.Y.3d 870, 824 N.Y.S.2d 615, 857 N.E.2d 1146 [2006] ).   Here, although a presentence evaluation report indicated that defendant is mildly mentally retarded, in light of defendant's lucid and coherent responses to County Court's inquiries during allocution as well as assurances by both defendant and his counsel that defendant fully understood the plea proceedings, we find that the court did not abuse its discretion in failing to order a competency hearing sua sponte (see People v. Borom, 55 A.D.3d 1041, 1041-1042, 866 N.Y.S.2d 391 [2008];  People v. Surdis, 23 A.D.3d at 843, 805 N.Y.S.2d 433;  People v. Kron, 8 A.D.3d 908, 909, 779 N.Y.S.2d 263 [2004], lvs. denied 3 N.Y.3d 708, 785 N.Y.S.2d 36, 818 N.E.2d 678, 3 N.Y.3d 758, 788 N.Y.S.2d 674, 821 N.E.2d 979 [2004];  People v. Reynolds, 290 A.D.2d 591, 591-592, 735 N.Y.S.2d 824 [2002] ).

ORDERED that the judgment is affirmed.

CARDONA, P.J.

PETERS, LAHTINEN, KANE and McCARTHY, JJ., concur.