PEOPLE v. DEWER

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

The PEOPLE of the State of New York, Respondent, v. Leroy DEWER, Appellant.

Decided: October 30, 1997

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ. Cynthia Feathers, Saratoga Springs, for appellant. Penelope D. Clute, District Attorney (Catherine M. Paul, of counsel), Plattsburgh, for respondent.

Appeal from a judgment of the County Court of Clinton County (Lewis, J.), rendered January 25, 1994, convicting defendant upon his plea of guilty of the crimes of assault in the second degree (two counts) and attempted murder in the second degree.

While an inmate at a State correctional facility, defendant was charged in separate indictments with, inter alia, assault and attempted murder in the first degree stemming from attacks on correction officers at the facility.   The proceedings were delayed due to the results of a mental health evaluation finding that defendant lacked the capacity to understand the proceedings against him.   Following a subsequent psychiatric evaluation establishing his competence to proceed, defendant entered a plea of guilty to two counts of assault in the second degree in full satisfaction of the first indictment and to attempted murder in the second degree in full satisfaction of the second indictment.   The pleas were entered with the express understanding that defendant would waive his right to appeal.   At sentencing, County Court denied defense counsel's request for an additional mental competency hearing and sentenced defendant as a second felony offender in accordance with the plea agreements.

 Contrary to defendant's contention on appeal, we conclude that defendant entered a knowing, intelligent and voluntary guilty plea and waiver of appeal (see, People v. Williams, 237 A.D.2d 644, 645, 654 N.Y.S.2d 846, 847, lv. denied 90 N.Y.2d 866, 661 N.Y.S.2d 193, 683 N.E.2d 1067).  Defendant behaved and responded appropriately during the court proceedings.   He acknowledged that he had not taken any drugs or medication, that he was in good health, that he understood the proceedings and that he wished to plead guilty.   He also acknowledged that he understood the ramifications of his plea and waiver of his right to appeal and that he was entering the guilty plea voluntarily.

 Inasmuch as a guilty plea “removes the issue of factual guilt from the a case” such as “the factual elements of the crime charged” (People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755), we find that defendant's challenge to the sufficiency of his plea to the second count of assault in the second degree has been waived (see, People v. Hill, 220 A.D.2d 905, 906, 632 N.Y.S.2d 691).   In any event, the fact that the plea allocution did not establish every element of the second count of assault in the second degree (see, People v. Moore, 71 N.Y.2d 1002, 1005, 530 N.Y.S.2d 94, 525 N.E.2d 740;  People v. Everett, 146 A.D.2d 950, 536 N.Y.S.2d 911;  People v. Langhorn, 119 A.D.2d 844, 501 N.Y.S.2d 470, lv. denied 68 N.Y.2d 758, 506 N.Y.S.2d 1046, 497 N.E.2d 716) or defendant's inability to recall the events completely (see, People v. Hali-Mizrahi, 238 A.D.2d 627, 655 N.Y.S.2d 697) did not negate the propriety of defendant's plea.

 Additionally, contrary to defendant's contention, there is no requirement that a defendant personally recite all of the elements constituting the underlying crime charged (see, People v. Kinch, 237 A.D.2d 830, 655 N.Y.S.2d 191, lv. denied 90 N.Y.2d 860, 661 N.Y.S.2d 186, 683 N.E.2d 1060).  Nor do we find that County Court abused its discretion in denying defense counsel's request at sentencing for a further mental competency examination of defendant (see, e.g., People v. Planty, 238 A.D.2d 806, 807, 657 N.Y.S.2d 109, 110, lv. denied 89 N.Y.2d 1098, 660 N.Y.S.2d 392, 682 N.E.2d 993).  Despite defendant's reluctance to respond to County Court's inquiries at sentencing, the court noted that defendant did respond to its instructions to stand.   Furthermore, evidence in the record revealed that defendant had previously used such tactics to delay court proceedings.

ORDERED that the judgment is affirmed.

MERCURE, Justice.

MIKOLL, J.P., and CREW, WHITE and YESAWICH, JJ., concur.

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