People v. Henderson

• Decision Date: 08 June 2018
• Docket Number: KA 14–00336,523
• Citation: 162 A.D.3d 1507,78 N.Y.S.3d 830
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert W. HENDERSON, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1507
78 N.Y.S.3d 830

The PEOPLE of the State of New York, Respondent,
v.
Robert W. HENDERSON, Jr., Defendant–Appellant.

523
KA 14–00336

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

Entered: June 8, 2018

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL, FULTON), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, AND NEMOYER, JJ.

78 N.Y.S.3d 832

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: We previously held this case, reserved decision and remitted the matter to County Court to conduct a reconstruction hearing with respect to the portions of the plea proceeding that were not transcribed because of the inaudibility of the digital recording ( People v. Henderson, 140 A.D.3d 1761, 1761, 34 N.Y.S.3d 821 [4th Dept. 2016] ). During the reconstruction hearing, the former prosecuting attorney and defendant's former attorney testified with respect to their recollections of defendant's answers to questions, stating that defendant had responded affirmatively to all of the court's questions. In its decision following the reconstruction hearing, the court, which had presided over the original plea proceeding, found that, during portions of the plea proceeding that were transcribed as either "inaudible" or "no verbal response," defendant had actually responded affirmatively to the court's questions, indicating that he understood the court's questions specifically and the proceedings generally. Based on the record of the reconstruction hearing and the original plea proceeding, we now affirm.

Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived his right to appeal and that he had "a full appreciation of the consequences" of that waiver ( People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). In addition, "defendant's history of mental illness did not invalidate the waiver of the right to appeal inasmuch as there was no showing that defendant was uninformed, confused or incompetent when he waived his right to appeal" ( People v. Brand, 112 A.D.3d 1320, 1321, 976 N.Y.S.2d 906 [4th Dept. 2013], lv. denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] [internal quotation marks omitted] ). The valid waiver of the right to appeal forecloses defendant's challenge to the severity of the sentence inasmuch as "there [was] a specific sentence promise at the time of the waiver" ( People v. Brown, 115 A.D.3d 1204, 1206, 982 N.Y.S.2d 255 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] [internal quotation marks omitted]; see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Defendant further contends that the court erred in failing to order a competency hearing sua sponte and that defense counsel was ineffective in failing to request such a hearing. Although those contentions survive the plea and the valid waiver of the right to appeal to the extent that they implicate the voluntariness of the plea (see People v. Stoddard, 67 A.D.3d 1055, 1055, 889 N.Y.S.2d 282 [3d Dept. 2009], lv denied 14 N.Y.3d 806, 899 N.Y.S.2d 140, 925 N.E.2d 944 [2010] ; People v. Jermain, 56 A.D.3d 1165, 1165, 867 N.Y.S.2d 326 [4th Dept. 2008], lv denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445 [2009] ), and they need not be preserved for our review (see People v. Winebrenner, 96 A.D.3d 1615, 1615–1616, 947 N.Y.S.2d 279 [4th Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012] ; but see People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [3d Dept. 2014] ), we nevertheless conclude that the contentions lack merit. Generally, "[a] defendant is presumed competent ..., and the court is under no obligation to issue an order of examination ... unless it has ‘reasonable

78 N.Y.S.3d 833

ground ... to believe that the defendant was an incapacitated person’ " ( People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ). Moreover, "a ‘history of psychiatric illness does not in itself call into question defendant's competence’ to proceed" ( People v. Carpenter, 13 A.D.3d 1193, 1194, 786 N.Y.S.2d 683...