People v. Mears II

• Decision Date: 24 March 2005
• Docket Number: 15060.
• Citation: 2005 NY Slip Op 02328,791 N.Y.S.2d 725,16 A.D.3d 917
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ERNEST L. MEARS II, Appellant.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 917

791 N.Y.S.2d 725

2005 NY Slip Op 02328

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ERNEST L. MEARS II, Appellant.

15060.

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

March 24, 2005.

Appeal from a judgment of the County Court of Warren County (Berke, J.), rendered August 26, 2003, convicting defendant upon his plea of guilty of the crimes of forgery in the second degree and grand larceny in the third degree.

Kane, J.

In April 2003, in full satisfaction of a seven-count indictment, defendant entered an Alford plea of guilty to grand larceny in the third degree and was placed on interim probation for six months. While on probation, defendant was arrested and charged with forgery in the second degree. In accordance with a plea agreement, which included a waiver of his right to appeal, defendant pleaded guilty to forgery in the second degree and was sentenced to concurrent prison terms of 1½ to 4½ years for both the forgery conviction and the grand larceny conviction. Defendant now appeals, alleging that he was incompetent at the time of his plea.

Initially, while not precluded by his waiver of the right to appeal, defendant's challenge to the voluntariness of his plea is not preserved because he failed to move to withdraw his plea or to vacate the judgment of conviction (see People v Scott, 12 AD3d 716, 717 [2004]; People v Grier, 11 AD3d 816, 816 [2004]). Were we to consider the issue, we would reject defendant's contention that County Court erred by accepting his plea without requiring a CPL article 730 hearing. Although the record reveals that defendant has a history of mental health and substance abuse problems, such history, alone, "does not necessarily render a defendant incompetent to enter a knowing and voluntary plea" (People v Barclay, 1 AD3d 705, 706 [2003], lv denied 1 NY3d 567 [2003]; see People v Stonis, 246 AD2d 911, 911-912 [1998], lv denied 92 NY2d 883 [1998]; People v Dover, 227 AD2d 804, 804-805 [1996], lv denied 88 NY2d 984 [1996]). Here, the record reflects that, during the plea colloquies, defendant intelligently answered the court's questions, affirmatively acknowledged that he understood the consequences of the waiver of his rights, stated that he had conferred with his attorney and that he accepted the terms of the plea agreement. As there is nothing to support defendant's allegation that he lacked the capacity to enter a knowing, intelligent and voluntary plea (see People v Young, 257 AD2d 764, 764 [1999], lv denied 93 NY2d 931 [1999]), w...