PEOPLE v. BLACKBURN (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered August 25, 2016, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.

As a result of a domestic altercation that occurred in May 2015, defendant was charged in a four-count indictment with assault in the second degree, criminal possession of a weapon in the third degree, menacing in the first degree and unlawful imprisonment in the second degree.  In full satisfaction of these charges, defendant pleaded guilty to the reduced charge of attempted assault in the second degree and executed a waiver of appeal.  Under the terms of the plea agreement, he was to receive a split sentence of time served and five years of probation.  County Court specifically advised defendant that if he were arrested for committing any other crimes prior to sentencing, it would not be bound by the sentencing commitment and it could sentence defendant to 1 to 4 years in prison.  Thereafter, when defendant appeared for sentencing, County Court was advised that defendant had been arrested for criminal contempt in the second degree.  Although defendant did not contest that he violated the conditions of the conditional commitment, defendant moved for an adjournment in order to undergo a mental competency evaluation.  County Court denied the request and sentenced defendant to a prison term of 1 to 4 years.  Defendant now appeals.

We affirm.  Although defendant's claim that he was not mentally competent to enter a guilty plea survives his valid, unchallenged waiver of appeal, this issue is nonetheless unpreserved for our review in the absence of an appropriate postallocution motion to withdraw his guilty plea on this ground, despite an opportunity to do so prior to the imposition of sentence (see CPL 220.60[3];  People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016];  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] ).  Moreover, contrary to defendant's contention, the narrow exception to the preservation requirement was not implicated, as defendant did not make any statements during his plea allocution or at sentencing that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Velazquez, 125 A.D.3d 1063, 1063–1064, 3 N.Y.S.3d 193 [2015], lv denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015];  People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [2014] ).

In any event, were defendant's claim properly before us, we would not discern any indication in the record that defendant suffered from a mental defect that impacted the voluntariness of his plea.  Defendant's history of mental illness, by itself, did not render him incompetent to enter a knowing and voluntary plea (see People v. Chavis, 117 A.D.3d at 1194, 987 N.Y.S.2d 111;  People v. Gomez, 72 A.D.3d 1337, 1338, 899 N.Y.S.2d 435 [2010] ) or necessitate a CPL article 730 hearing (see CPL 730.10[1];  People v. Park, 159 A.D.3d 1132, 1133, 72 N.Y.S.3d 242 [2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254, 2018 WL 2939575 [May 30, 2018];  People v. Stover, 123 A.D.3d 1232, 1233, 999 N.Y.S.2d 221 [2014], lv denied 26 N.Y.3d 936, 17 N.Y.S.3d 99, 38 N.E.3d 845 [2015] ).  Further, during the plea colloquy, defendant confirmed that he understood the proceedings and denied being under the influence of any medication or having any “medical or mental health condition” that interfered with his ability to understand what was transpiring (see People v. Stover, 123 A.D.3d at 1233, 999 N.Y.S.2d 221;  People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016];  People v. Vandemark, 117 A.D.3d 1339, 1340, 986 N.Y.S.2d 684 [2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014];  People v. Chavis, 117 A.D.3d at 1194, 987 N.Y.S.2d 111).  To the extent that defendant claims that the sentence imposed was harsh and excessive, appellate review of this claim is precluded by his unchallenged waiver of appeal (see People v. Perkins, 140 A.D.3d 1401, 1403, 33 N.Y.S.3d 584 [2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016];  People v. Hall, 135 A.D.3d 1246, 1246, 23 N.Y.S.3d 725 [2016], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ).  Defendant's remaining contentions have been examined and found to be without merit.

ORDERED that the judgment is affirmed.

Aarons, J.

Egan Jr., J.P., Lynch, Mulvey and Pritzker, JJ., concur.