People v. Gambaccini

• Decision Date: 18 December 2003
• Docket Number: 14711.
• Citation: 2 A.D.3d 1065,769 N.Y.S.2d 634,2003 NY Slip Op 19594
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARRIE L. GAMBACCINI, Appellant.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 1065

769 N.Y.S.2d 634

2003 NY Slip Op 19594

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARRIE L. GAMBACCINI, Appellant.

14711.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 18, 2003.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered February 3, 2003, convicting defendant upon her plea of guilty of the crime of attempted assault in the second degree.

Carpinello, J.

Defendant struck her fiancé in the face with a shovel in the course of an altercation during which both parties were intoxicated. She was thereafter charged with the crime of assault in the second degree and criminal possession of a weapon in the fourth degree. Pursuant to a plea agreement, defendant pleaded guilty to the crime of attempted assault in the second degree, waiving her right to appeal. It was agreed that she would be sentenced to a term of probation conditioned upon, inter alia, her successful participation in an in-patient substance abuse program prior to sentencing. After two weeks, however, defendant was discharged from the program due to her failure to comply with its requirements; hence, County Court sentenced her to a prison term of 1 to 3 years.

Defendant appeals, contending that she was denied the right to the effective assistance of counsel as evidenced by defense counsel's failure to move for a competency hearing pursuant to CPL article 730. We note that although defendant's waiver of her right to appeal does not preclude appellate review of this issue as it relates to the voluntariness of her plea, her failure to make a motion to withdraw her plea or to vacate the judgment of conviction on this ground renders this claim unpreserved for our review (see People v Shaw, 306 AD2d 697 [2003]; People v Ambrose, 266 AD2d 26 [1999]). In any event, we note that defendant has failed to show the necessary absence of any strategic or other legitimate explanation for defense counsel's failure to raise the issue of defendant's competency (see People v Dunn, 261 AD2d 940, 941 [1999], lv denied 94 NY2d 822 [1999]). Furthermore, defendant gave no indication during the proceedings that she was an incapacitated person within the meaning of CPL article 730. She was questioned by County Court several times regarding her comprehension of the pending charges and her right to defend herself against them and, in each instance, she gave coherent answers indicating her understanding. Given the mental competence exhibited by defen...