PEOPLE v. ROOSEVELT

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Tito ROOSEVELT, Defendant-appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2] ).   Defendant contends that Supreme Court erred in failing sua sponte to order a competency hearing pursuant to CPL 730.30(1) before accepting his plea of guilty or sentencing him.   We reject that contention.   It is well settled that “[a] defendant is presumed competent ․, and the court is under no obligation to issue an order of examination ․ unless it has ‘reasonable ground ․ to believe that the defendant was an incapacitated person’ ” (People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260;  see People v. Tortorici, 92 N.Y.2d 757, 765-766, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80;   People v. Williams, 35 A.D.3d 1273, 825 N.Y.S.2d 862, lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465;  People v. Carbonel, 296 A.D.2d 858, 745 N.Y.S.2d 367).   Here, the only alleged evidence of defendant's incompetency before the court was information in the presentence report indicating that defendant was raised in a dysfunctional family and had been abused and neglected 20 years earlier.   In addition, the presentence report indicated that defendant had a low level of intelligence.   There is, however, no indication in the record that defendant was unable to understand the proceedings and, indeed, the record is devoid of any evidence that defendant had a history of mental illness.   Rather, the record establishes that the court conducted a thorough plea colloquy and that “ [d]efendant's answers were in all respects appropriate, showing no indication of mental impairment requiring a competency hearing” (People v. Dover, 227 A.D.2d 804, 805, 642 N.Y.S.2d 438, lv. denied 88 N.Y.2d 984, 649 N.Y.S.2d 390, 672 N.E.2d 616).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: