PEOPLE v. GUMBS (2019)

MEMORANDUM AND ORDER

In satisfaction of a four-count indictment, defendant pleaded guilty to robbery in the first degree and waived his right to appeal.  He was sentenced as a second felony offender to the agreed-upon prison term of 18 years, followed by five years of postrelease supervision.  Defendant appeals.

Defendant contends that, given his posttraumatic stress disorder and other mental health issues noted in the presentence report and his assertion at sentencing that his judgment is, at times, clouded because of his mental health deficiencies, the knowing and voluntary nature of his plea was called into question and County Court should have conducted a competency hearing before final judgment was entered.  In addition, defendant contends that, because defense counsel did not request a competency hearing, he received the ineffective assistance of counsel.

Defendant's contentions — to the extent that they impact the voluntariness of his plea — survive his unchallenged waiver of the right to appeal but are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [2014];  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] ).  Further, despite defendant's contention to the contrary, we are unpersuaded that defendant's statements regarding his overall mental health cast doubt on his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Chavis, 117 A.D.3d at 1194, 987 N.Y.S.2d 111;  cf. People v. Mox, 20 N.Y.3d 936, 937–938, 958 N.Y.S.2d 670, 982 N.E.2d 590 [2012] ).

In any event, were these contentions properly before us, we would find them to be without merit.  Defendant's mental health issues alone do not necessarily render him incompetent to enter a knowing and voluntary guilty plea or require that defense counsel request, or County Court order, a CPL article 730 competency hearing (see 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];  People v. Duffy, 126 A.D.3d 1142, 1142, 126 A.D.3d 1142 [2015];  People v. Chavis, 117 A.D.3d at 1194, 987 N.Y.S.2d 111).  Further, nothing in the plea colloquy or at sentencing indicates that defendant suffered from a mental defect that impacted the voluntariness of his plea (see People v. Park, 159 A.D.3d at 1133–1134, 72 N.Y.S.3d 242;  People v. Chavis, 117 A.D.3d at 1194, 987 N.Y.S.2d 111;  People v. Tafari, 90 A.D.3d 1341, 1342–1433, 935 N.Y.S.2d 378 [2011], lv denied 19 N.Y.3d 977, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012];  People v. Jenks, 69 A.D.3d 1120, 1121–1122, 891 N.Y.S.2d 766 [2010], lv denied 14 N.Y.3d 841, 901 N.Y.S.2d 148, 927 N.E.2d 569 [2010] ).

To the extent that defendant asserts that defense counsel was ineffective because he did not request at sentencing a reduction in the agreed-upon sentence, such contention does not impact the voluntariness of the plea and, therefore, is precluded by the unchallenged waiver of the right to appeal (see People v. Burks, 163 A.D.3d 1268, 1269, 81 N.Y.S.3d 665 [2018] ).  Similarly, the appeal waiver precludes defendant's challenge to the severity of the agreed-upon sentence (see People v. Tucker, 160 A.D.3d 1303, 1304, 75 N.Y.S.3d 358 [2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ).

ORDERED that the judgment is affirmed.

Mulvey, J.

Egan Jr., J.P., Clark, Devine and Rumsey, JJ., concur.