People v. Greenwood

• Decision Date: 12 November 1976
• Citation: 54 A.D.2d 1123,388 N.Y.S.2d 796
• Parties: PEOPLE of the State of New York, Respondent, v. Donald GREENWOOD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 796

388 N.Y.S.2d 796

54 A.D.2d 1123

PEOPLE of the State of New York, Respondent, v. Donald GREENWOOD, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 12, 1976.

George T. Dunn, Public Defender, Gerald Barth, Syracuse, for appellant.

Jon K. Holcombe, Dist. Atty., John Cirando, Syracuse, for respondent.

Before CARDAMONE, J.P., and MAHONEY, DILLON, GOLDMAN and WITMER, JJ.

MEMORANDUM:

The defendant was indicted in January, 1971 and charged with sodomy in the first degree and sexual abuse in the first degree. On July 19, 1971 he pled guilty to sexual abuse in the first degree, thereafter being sentenced to an indeterminate term with a maximum of seven years. The defendant was granted credit for 351 days while in custody awaiting disposition of this charge. The minutes of the sentencing court were filed with the Onondage County Clerk on April 19, 1976, approximately five years after the sentencing in 1971.

The plea minutes indicate that a two-page report from the F.B.I. was handed to the judge but was not made part of the trial record. Defense counsel offered a letter from a mental institution together with a psychiatrist's report which were received by the court but not made part of the record. The court indicated that it had received other medical reports relative to the defendant. Prior to sentencing defense counsel stated, 'There is considerable question as to whether the defendant was insane at the time of the commission of the crime pursuant to 30.05 of the Penal Law of the State of New York.' Notwithstanding the foregoing references to the sanity of the defendant, neither the District Attorney, the defense counsel nor the court raised the issue of defendant's mental ability knowingly to enter a plea of guilty.

Under date of March 18, 1975 the defendant moved for reversal of his conviction on the ground that his right to appeal had been negated because a complete trial transcript was unavailable. The motion was denied with leave to renew on proper papers (People v. Allen, 47 A.D.2d 999, 367 N.Y.S.2d 364). Nowhere in the record do we find that defendant was afforded the right of allocution. In pronouncing sentence the court directed that the psychiatric reports be forwarded to the Attica Correctional Facility together with the rest of the record.

In Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 the

Supreme Court held, '* * * that the conviction of an accused person while he is legally incompetent violates due process * * * and that state procedures must be adequate to protect this right. * * *' An incompetent person cannot waive his right relative to his capacity to stand trial. As stated by the Court of Appeals in People v. Armlin, 37 N.Y.2d 167, 172, 371 N.Y.S.2d 691, 697, 332 N.E.2d 870, 874:

'* * * We agree that there is an inherent contradiction in arguing that a defendant may be incompetent, and yet knowingly, or intelligently waive his right to have a court determine his capacity to stand trial in accordance with the Criminal Procedure Law (43 A.D.2d 782, 784, 350 N.Y.S.2d 795, 799; see Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815). Moreover, this court has previously taken cognizance of the principles enunciated in Pate v. Robinson (supra) and has held that the issue of competency to stand trial...