PEOPLE v. WHEELER

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

The PEOPLE of the State of New York, Respondent, v. Brett WHEELER, Appellant.

Decided: April 23, 1998

Before MIKOLL, J.P., and CREW, YESAWICH, SPAIN and CARPINELLO, JJ. Leslie B. Neustadt, Albany, for appellant. Robert M. Winn, District Attorney, Fort Edward, for respondent.

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered January 2, 1996, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.

After attacking a correction officer at Great Meadow Correctional Facility in Washington County, defendant, then an inmate there, was indicted upon charges of promoting prison contraband, assault and attempted murder in the first degree.   A day before his trial was scheduled to commence, defendant agreed to plead guilty to one count of attempted murder in the second degree in satisfaction of the entire indictment.   In exchange, the People recommended a sentence of 7 1/212 to 15 years' incarceration.   Following a fully adequate colloquy, County Court accepted the plea arrangement and sentenced defendant in accordance with the agreement.   This appeal ensued.

 Defendant's contentions are groundless.   In view of defendant's rational participation in, and evident comprehension of, the proceedings before County Court, neither his filing of a notice of intent to raise an insanity defense nor his attorney's comment-that her client had been transferred “back and forth” between two facilities, one of which apparently contains a psychiatric hospital for prison inmates-constituted “reasonable grounds” for believing that defendant may have been incompetent to stand trial, such that it would have been incumbent upon County Court to order a competency evaluation (see, CPL 730.30) prior to entering final judgment (see, People v. Armlin, 37 N.Y.2d 167, 171, 371 N.Y.S.2d 691, 332 N.E.2d 870;  People v. Claudio, 183 A.D.2d 945, 583 N.Y.S.2d 563).   A review of the plea colloquy and sentencing minutes reveals nothing suggesting that defendant was disoriented or unable to understand the proceedings or work with his attorney (see, People v. Morton, 173 A.D.2d 1081, 1083, 570 N.Y.S.2d 846, lv. denied 78 N.Y.2d 1129, 578 N.Y.S.2d 886, 586 N.E.2d 69;  People v. Jones, 143 A.D.2d 465, 466, 532 N.Y.S.2d 586).   The mere existence of a notation in the presentence report that defendant, some three years earlier, had been diagnosed as suffering from a mental disorder, does not, without more, trigger a duty to inquire further as to his competency (see, People v. Planty, 238 A.D.2d 806, 657 N.Y.S.2d 109, lv. denied 89 N.Y.2d 1098, 660 N.Y.S.2d 392, 682 N.E.2d 993;  People v. Clickner, 128 A.D.2d 917, 918-919, 512 N.Y.S.2d 572, lv. denied 70 N.Y.2d 644, 518 N.Y.S.2d 1036, 512 N.E.2d 562).

 Nor was defendant, as he complains, afforded less than effective assistance of counsel.   Defense counsel made a comprehensive pretrial motion and sought relevant discovery.   He also preserved defendant's right to raise a defense based on mental disease or defect, by filing the appropriate notice and effectively arguing for its late acceptance, and, not insignificantly, negotiated an advantageous plea bargain (see, People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;  People v. Morelli, 228 A.D.2d 818, 819, 644 N.Y.S.2d 574, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623).   Moreover, defendant has failed to demonstrate that his counsel lacked a legitimate reason for not requesting a competency hearing or for not continuing to pursue the insanity defense (see, People v. Bass, 236 A.D.2d 651, 652, 653 N.Y.S.2d 873).

 Finally, in view of the nature and circumstances of the underlying crime and defendant's criminal history, we find the agreed-upon sentence (which is below the harshest allowed for the crime given defendant's status as a second violent felony offender) is in no respect inappropriate (see, People v. Fish, 235 A.D.2d 578, 581, 652 N.Y.S.2d 124, lv. denied 89 N.Y.2d 1092, 660 N.Y.S.2d 386, 682 N.E.2d 987).

ORDERED that the judgment is affirmed.

YESAWICH, Justice.

MIKOLL, J.P., and CREW, SPAIN and CARPINELLO, JJ., concur.

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