PEOPLE v. COLE (2018)

MEMORANDUM AND ORDER

Defendant entered a guilty plea to arson in the second degree in satisfaction of an eight-count indictment, waived his right to appeal his conviction and sentence and was sentenced, as a second violent felony offender, to 15 years in prison followed by five years of postrelease supervision.  Defendant's subsequent motion to vacate the judgment pursuant to CPL 440.10 was denied without a hearing.  Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion.

As to defendant's direct appeal, although his challenge to the voluntariness of his guilty plea survives his waiver of the right to appeal, he failed to preserve this issue by making a postallocution motion to withdraw his plea (see CPL 220.60[3];  People v. Davis, 150 A.D.3d 1396, 1397, 54 N.Y.S.3d 723 [2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017] ).  Further, the narrow exception to the preservation requirement is not implicated, as defendant made no statements during the plea allocution or at sentencing that were inconsistent with his guilt or called into question the voluntariness of his plea (see People v. Blackburn, 164 A.D.3d 960, 961, 82 N.Y.S.3d 242 [2018];  People v. Davis, 150 A.D.3d at 1397, 54 N.Y.S.3d 723).  To the extent that defendant's claim of ineffective assistance of counsel implicates the voluntariness of his plea, it is similarly not preserved for our review on direct appeal in the absence of a motion to withdraw his plea (see People v. Rivera, 164 A.D.3d 1573, 1574, 83 N.Y.S.3d 749 [2018];  People v. Davis, 150 A.D.3d at 1397, 54 N.Y.S.3d 723).

With respect to his CPL 440.10 motion, defendant argues that the judgment of conviction should be vacated because he was not competent to enter a knowing, intelligent and voluntary plea and counsel's failure to raise this issue deprived him of effective representation.  Defendant also contends that it was error for County Court to deny this motion without a hearing.  Although medical records establish that defendant received treatment for psychiatric issues prior to and during his incarceration and around the time of his plea, there is no indication that defendant was incapable of understanding the nature of the proceedings (see People v. Ryder, 136 A.D.3d 1109, 1110, 24 N.Y.S.3d 452 [2016], lv denied 27 N.Y.3d 1005, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016];  People v. Kaszubinski, 55 A.D.3d 1133, 1135, 865 N.Y.S.2d 772 [2008], lv denied 12 N.Y.3d 855, 881 N.Y.S.2d 667, 909 N.E.2d 590 [2009];  compare People v. Hennessey, 111 A.D.3d 1166, 1168, 975 N.Y.S.2d 502 [2013] ).  Defendant actively participated in the plea proceedings and asked questions to clarify the nature of his plea.  Accordingly, counsel's failure to investigate further or request a competency hearing did not deprive defendant of effective assistance (see People v. Ricketts–Simpson, 130 A.D.3d 1149, 1150, 12 N.Y.S.3d 659 [2015];  People v. Blackmon, 122 A.D.3d 1071, 1072–1073, 996 N.Y.S.2d 769 [2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015] ).  Further, given that defendant's submissions do not demonstrate that “the nonrecord facts sought to be established are material and would entitle him to relief,” we find that County Court properly denied the motion without a hearing (People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985];  see People v. Jones, 161 A.D.3d 1311, 1313, 77 N.Y.S.3d 201 [2018], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018];  People v. Kot, 126 A.D.3d 1022, 1025, 4 N.Y.S.3d 714 [2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ).

ORDERED that the judgment and order are affirmed.

Egan Jr., J.

Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur.