People v. Coons
| Citation | 901 N.Y.S.2d 406,2010 N.Y. Slip Op. 04285,73 A.D.3d 1343 |
| Parties | The PEOPLE of the State of New York, Respondent,v.David A. COONS, Appellant. |
| Decision Date | 20 May 2010 |
| Court | New York Supreme Court — Appellate Division |
73 A.D.3d 1343
901 N.Y.S.2d 406
2010 N.Y. Slip Op. 04285
The PEOPLE of the State of New York, Respondent,
v.
David A. COONS, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
May 20, 2010.
[901 N.Y.S.2d 407]
Daniel W. Coffey, Albany, for appellant.Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.Before: CARDONA, P.J., MERCURE, LAHTINEN, MALONE JR. and EGAN JR., JJ.LAHTINEN, J.
[73 A.D.3d 1344] Appeal from a judgment of the Supreme Court (Sise, J.), rendered January 9, 2009 in Schenectady County, convicting defendant upon his plea of guilty of the crime of burglary in the third degree (three counts).
Defendant was charged with various crimes in three separate indictments. In May 2008, following the People's successful motion to consolidate the indictments, defendant agreed to plead guilty to three counts of burglary in the third degree. In June 2008, when the presentence investigation report indicated that defendant had apparently attempted suicide during an interview with a probation officer, Supreme Court adjourned sentencing and ordered a competency examination pursuant to CPL article 730. As a result of that examination, defendant was found to be an incapacitated person by both examining psychiatrists. Neither party requested a CPL article 730 competency hearing at that time and defendant was thereafter remanded to a mental health facility for treatment. In November 2008, defendant was found to be fit to proceed and, in January 2009, after reaffirming his guilty plea, defendant was sentenced pursuant to the plea agreement as a persistent felony offender to a prison term of 15 years to life. Defendant now appeals.
We affirm. Defendant's sole claim on appeal is that, inasmuch as he was found to be incompetent subsequent to the date of his plea, he should be presumed to have been incompetent at the time of his plea and, therefore, Supreme Court erred in accepting the plea without ordering a CPL article 730 competency hearing. Initially, we note that as defendant's claim challenges the voluntariness of his plea, it is not preserved for our review due to his failure to move to withdraw
his plea or vacate his judgment of conviction ( see People v. Dantzler, 63 A.D.3d 1376, 1377, 881 N.Y.S.2d 222 [2009], lv. denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010]; People v. Sorey, 55 A.D.3d 1063, 1064, 866 N.Y.S.2d 393 [2008], lv. denied 11 N.Y.3d 930, 874...
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