PEOPLE v. STENDARDO III

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

The PEOPLE of the State of New York, Respondent, v. Anthony C. STENDARDO, III, Defendant–Appellant.

1424

Decided: February 01, 2019

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ. BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon his plea of guilty, of one count of possessing a sexual performance by a child (Penal Law § 263.16) in satisfaction of an indictment charging him with 40 counts of that crime.  Pursuant to the terms of the plea agreement, County Court sentenced defendant to a 10–year term of probation.  Defendant contends that, as a result of brain damage that he allegedly sustained, his plea was not knowingly and voluntarily entered.  Because defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground, his contention is not preserved for our review (see People v. Brown, 115 A.D.3d 1204, 1205, 982 N.Y.S.2d 255 [4th Dept. 2014], lv. denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014];  People v. Davis, 45 A.D.3d 1357, 1357–1358, 844 N.Y.S.2d 739 [4th Dept. 2007], lv denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879 [2007] ).

Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] “inasmuch as nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea” (People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623 [4th Dept. 2011] ).  In any event, we note that the court conducted further inquiry to ensure that the plea was knowingly and voluntarily entered (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Wilkes, 160 A.D.3d 1491, 1492, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ).  Indeed, during the plea colloquy, the court specifically addressed the issues relating to defendant's cognitive functioning, as referenced in the preplea investigation report prepared by the Probation Department, and, in response to the court's inquiries, both defendant and defense counsel indicated that defendant's medical condition did not affect his ability to understand the proceedings.

We also reject defendant's contention that defense counsel was ineffective for failing to advise him of the mental disease or defect defense under Penal Law § 40.15 because there is no indication in the record that he suffered from a mental disease or defect as defined in that statute.  Based on our review of the record, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).  Indeed, despite seemingly strong evidence of guilt on all 40 counts of the indictment, defense counsel negotiated a plea agreement whereby defendant was permitted to plead guilty to only one count and was sentenced to a term of probation, rather than a term of incarceration.

Finally, because there is no indication in the record that defendant suffered from a mental disease or defect as defined in Penal Law § 40.15, we reject defendant's contention that the court was obligated to advise him of that potential defense during the plea colloquy.