People v. Newsome

• Decision Date: 08 October 2021
• Docket Number: 745,KA 17-01377
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas B. NEWSOME, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 1357
155 N.Y.S.3d 260

The PEOPLE of the State of New York, Respondent,
v.
Thomas B. NEWSOME, Defendant-Appellant.

745
KA 17-01377

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

Entered: October 8, 2021

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

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

198 A.D.3d 1357

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

Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39 [1] ). Defendant contends that his guilty plea was not knowing, voluntary, and intelligent. Defendant, however, failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Tapia , 158 A.D.3d 1079, 1080, 70 N.Y.S.3d 309 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ;

198 A.D.3d 1358

People v. VanDeViver , 56 A.D.3d 1118, 1118, 867 N.Y.S.2d 586 [4th Dept. 2008], lv denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009], reconsideration denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ). This case does not fall within the rare exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).

Defendant further contends that County Court erred in failing to order a competency hearing sua sponte. Although that contention need not be preserved for our review (see People v. Chapman , 179 A.D.3d 1526, 1527, 119 N.Y.S.3d 343 [4th Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 25, 148 N.E.3d 489 [2020] ; People v. Henderson , 162 A.D.3d 1507, 1508, 78 N.Y.S.3d 830 [4th Dept. 2018], lv denied 32 N.Y.3d 1004, 86 N.Y.S.3d 762, 111 N.E.3d 1118 [2018] ), we nevertheless reject it. We conclude that there is "no indication in the

155 N.Y.S.3d 262

record that defendant was unable to understand the proceedings.... Rather, the record establishes that the court conducted a thorough plea colloquy and that [d]efendant's answers were in all respects appropriate, showing no indication of mental impairment requiring a competency hearing" ( People v. Roosevelt , 43 A.D.3d 1300, 1301, 842 N.Y.S.2d 639 [4th Dept. 2007], lv denied 9 N.Y.3d 1038, 852 N.Y.S.2d 24, 881 N.E.2d 1211 [2008] [internal quotation marks omitted]; see People v. Shannon , 189 A.D.3d 2165, 2166, 134 N.Y.S.3d 914 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 126, 167 N.E.3d 1261 [2021] ; People v. Wilcox , 45 A.D.3d 1320, 1320, 845 N.Y.S.2d 621 [4th Dept. 2007], lv denied 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269 [2008] ). Although defendant advised the court of his mental health issues, it is well established that "a history of psychiatric illness does not in itself call into question defendant's competence to proceed" ( Henderson , 162 A.D.3d at 1508, 78 N.Y.S.3d 830 [internal quotation marks omitted]; see People v. Carpenter , 13 A.D.3d 1193, 1194, 786 N.Y.S.2d...