People v. Bates

• Decision Date: 07 April 2011
• Citation: 83 A.D.3d 1110,920 N.Y.S.2d 795,2011 N.Y. Slip Op. 02746
• Parties: The PEOPLE of the State of New York, Respondent,v.Brent A. BATES, Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1110

920 N.Y.S.2d 795

2011 N.Y. Slip Op. 02746

The PEOPLE of the State of New York, Respondent,

v.Brent A. BATES, Appellant.

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

April 7, 2011.

Richard E. Cantwell, Plattsburgh, for appellant.Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.Before: PETERS, J.P., LAHTINEN, MALONE JR., KAVANAGH and GARRY, JJ.GARRY, J.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered October 20, 2008, convicting defendant upon his plea of guilty of the crime of attempted aggravated assault upon a police officer (two counts).

In August 2007, shortly after midnight, two State Troopers approached a vehicle parked on the side of and perpendicular to a road in the Town of Tupper Lake, Franklin County. The officers questioned defendant, who was the only person in the car, and observed the smell of alcohol as well as beer containers on the passenger seat of the car. Defendant produced his driver's license and, when asked for the vehicle's registration, proffered an insurance card in the name of another individual. One of the officers continued to question defendant, while the second walked around the car, noticing the end of a concealed pistol on the passenger seat. The second officer informed the first of the presence of the weapon and suggested that defendant be removed from the car. Defendant then grabbed the pistol and exited the car, and an exchange of gunfire ensued. One officer was injured by shrapnel, and defendant was wounded in the head and neck. Defendant's injuries led to a month-long coma, blindness in one eye, significant and permanent impairment of his legs and memory loss as to the events involving the officers.

A grand jury subsequently handed up a 17–count indictment. County Court ordered a competency examination pursuant to CPL article 730 and, following a hearing, found defendant competent to stand trial. Defendant thereafter entered an Alford plea to two counts of attempted aggravated assault upon a police officer in full satisfaction of the indictment,¹ executed a valid waiver of appeal and was sentenced to two consecutive prison terms of 12 1/2 years to be followed by five years of postrelease supervision. Defendant appeals, and we affirm.

Defendant first contends that County Court erred in finding him fit to proceed to trial, asserting that his amnesia made him unable to assist counsel with his defense. CPL 730.10(1) defines an incapacitated person as “a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him [or her] or to assist in his [or her] own defense” ( see People v. Francabandera, 33 N.Y.2d 429, 432, 354 N.Y.S.2d 609, 310 N.E.2d 292 [1974] ).² To be competent, “the defendant must have ‘sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding—and ... a rational as well as factual understanding of the proceedings against him [or her]’ ” ( People v. Mendez, 1 N.Y.3d 15, 19, 769 N.Y.S.2d 162, 801 N.E.2d 382 [2003], quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 [1960] [emphasis added] ). This standard requires merely a “ modicum of intelligence [to] assist counsel” ( People v. Francabandera, 33 N.Y.2d at 436, 354 N.Y.S.2d 609, 310 N.E.2d 292), and where a defendant suffers from memory loss, a court will not automatically find the defendant not competent to stand trial ( see id. at 438–439, 354 N.Y.S.2d 609, 310 N.E.2d 292; People v. Surdis, 77 A.D.3d 1018, 1018 n. 1, 909 N.Y.S.2d 170 [2010] ).

Here, County Court appropriately ordered competency examinations and, when differences arose among the submitted recommendations, properly ordered a hearing to make a final determination. The two evaluations that found defendant not competent to stand trial based these recommendations solely on defendant's inability to assist counsel due to his memory loss; neither evaluation considered his “present ability to consult with his lawyer” ( People v. Mendez, 1 N.Y.3d at 19, 769 N.Y.S.2d 162, 801 N.E.2d 382 [internal quotation marks and citation omitted] ). All three evaluations found defendant sufficiently aware of the charges he was facing, the gravity of those charges, and the roles of the judge, jury, and prosecutor during a trial. Significantly, during one interview, defendant expressed a desire to find new counsel and discussed hypothetical issues concerning how to assist counsel. We accord deference to the court's credibility assessments concerning the conflicting evaluations ( see id. at 20, 769 N.Y.S.2d 162, 801 N.E.2d 382; People v. Surdis, 77 A.D.3d at 1018–1019, 909 N.Y.S.2d 170) and, upon examination of the record, find no reason to disturb the court's ruling that defendant was fit to proceed to trial.

Defendant next argues that his Alford plea was not voluntary due to the competency determination and his memory loss. Although this assertion survives defendant's valid appeal waiver, it is unpreserved for our review as he neither moved to withdraw his plea nor to vacate the judgment of conviction ( see People v. Miller, 82 A.D.3d 1278, 918 N.Y.S.2d 224, 225 [2011]; People v. Pendelton, 81 A.D.3d 1037, 1038, 916...