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The PEOPLE, etc., respondent, v. Raymond LEACH, appellant.

    Decided: March 05, 2014

REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.Arza Feldman, Uniondale, N.Y., for appellant, and appellant pro se. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz and Andrew R. Kass of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered July 27, 2011, convicting him of attempted grand larceny in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

A waiver of the right to appeal is enforceable where, as here, it is voluntary, knowing, and intelligent (see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; People v. Finn, 56 A.D.3d 490, 865 N.Y.S.2d 915).

A defendant cannot waive, as part of a plea bargain, a question as to his competency to stand trial (see People v. Allen, 86 N.Y.2d 599, 602, 635 N.Y.S.2d 139, 658 N.E.2d 1012; People v. Armlin, 37 N.Y.2d 167, 172, 371 N.Y.S.2d 691, 332 N.E.2d 870). Similarly, a challenge to a defendant's competency remains outside the ambit of a valid appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Seaberg, 74 N.Y.2d at 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Here, however, the defendant's contention that his plea was involuntary because he was mentally incompetent to understand the nature of the charges against him is belied by the record. The defendant's most recent psychological evaluation concluded that the defendant was mentally competent, and defense counsel stated that he did not wish to controvert that evaluation. Moreover, the defendant's responses during the plea and sentence proceedings were appropriate and did not indicate that he was incapacitated (see People v. Batista, 82 A.D.3d 1113, 1114, 919 N.Y.S.2d 350; People v. Gallo, 73 A.D.3d 804, 805, 899 N.Y.S.2d 655; People v. Pryor, 11 A.D.3d 565, 566, 782 N.Y.S.2d 803; People v. Hollis, 204 A.D.2d 569, 614 N.Y.S.2d 211).

The original charge under count one of the indictment had been reduced by a prior order of the County Court from grand larceny in the third degree to attempted grand larceny in the third degree on the ground that the evidence was legally insufficient to establish the offense charged. The People neither filed a reduced indictment nor exercised any of their other options pursuant to CPL 210.20(6) within 30 days following the entry of the order. As part of a negotiated plea bargain, the defendant pleaded guilty to count one as reduced by the County Court. Contrary to the defendant's contention in his pro se supplemental brief, at the time of the plea, the reduced “charge ․ remained viable after expiration of the 30–day stay” (People v. Flock, 30 A.D.3d 611, 612, 817 N.Y.S.2d 369; see People v. Jackson, 87 N.Y.2d 782, 784, 642 N.Y.S.2d 602, 665 N.E.2d 172).

The defendant's claim, made in his pro se supplemental brief, that he was deprived of his constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “ ‘mixed claim[ ]” ’ of ineffective assistance (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457, cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919).

The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

By pleading guilty, the defendant forfeited his right to seek review of any alleged Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; People v. Huggins, 105 A.D.3d 760, 761, 961 N.Y.S.2d 784; People v. Kidd, 100 A.D.3d 779, 953 N.Y.S.2d 863).

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