PEOPLE v. MEARS II (2005)

Appeal from a judgment of the County Court of Warren County (Berke, J.), rendered August 26, 2003, convicting defendant upon his plea of guilty of the crimes of forgery in the second degree and grand larceny in the third degree.

In April 2003, in full satisfaction of a seven-count indictment, defendant entered an Alford plea of guilty to grand larceny in the third degree and was placed on interim probation for six months.   While on probation, defendant was arrested and charged with forgery in the second degree.   In accordance with a plea agreement, which included a waiver of his right to appeal, defendant pleaded guilty to forgery in the second degree and was sentenced to concurrent prison terms of 1 1/212 to 4 1/212 years for both the forgery conviction and the grand larceny conviction.   Defendant now appeals, alleging that he was incompetent at the time of his plea.

 Initially, while not precluded by his waiver of the right to appeal, defendant's challenge to the voluntariness of his plea is not preserved because he failed to move to withdraw his plea or to vacate the judgment of conviction (see People v. Scott, 12 A.D.3d 716, 717, 783 N.Y.S.2d 477 [2004];  People v. Grier, 11 A.D.3d 816, 816, 783 N.Y.S.2d 146 [2004] ).   Were we to consider the issue, we would reject defendant's contention that County Court erred by accepting his plea without requiring a CPL article 730 hearing.   Although the record reveals that defendant has a history of mental health and substance abuse problems, such history, alone, “ does not necessarily render a defendant incompetent to enter a knowing and voluntary plea” (People v. Barclay, 1 A.D.3d 705, 705, 766 N.Y.S.2d 636 [2003], lv. denied 1 N.Y.3d 567, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003];  see People v. Stonis, 246 A.D.2d 911, 911-912, 667 N.Y.S.2d 843 [1998], lv. denied 92 N.Y.2d 883, 678 N.Y.S.2d 30, 700 N.E.2d 568 [1998];  People v. Dover, 227 A.D.2d 804, 804-805, 642 N.Y.S.2d 438 [1996], lv. denied 88 N.Y.2d 984, 649 N.Y.S.2d 390, 672 N.E.2d 616 [1996] ).   Here, the record reflects that, during the plea colloquies, defendant intelligently answered the court's questions, affirmatively acknowledged that he understood the consequences of the waiver of his rights, stated that he had conferred with his attorney and that he accepted the terms of the plea agreement.   As there is nothing to support defendant's allegation that he lacked the capacity to enter a knowing, intelligent and voluntary plea (see People v. Young, 257 A.D.2d 764, 764, 684 N.Y.S.2d 23 [1999], lv. denied 93 N.Y.2d 931, 693 N.Y.S.2d 514, 715 N.E.2d 517 [1999] ), we would find that County Court did not abuse its discretion by accepting defendant's pleas without holding a competency hearing.   Finally, as this was not a situation in which the court was required to offer defendant an opportunity to withdraw his plea (compare People v. Boyce, 12 A.D.3d 728, 729, 783 N.Y.S.2d 722 [2004];  People v. Ventura, 301 A.D.2d 967, 753 N.Y.S.2d 403 [2003];  People v. Hartford, 217 A.D.2d 798, 799-800, 629 N.Y.S.2d 822 [1995] ), defendant's claim that County Court failed to do so is unavailing.

ORDERED that the judgment is affirmed.

KANE, J.

CREW III, J.P., MUGGLIN, ROSE and LAHTINEN, JJ., concur.