People v. Newsome

• Decision Date: 08 October 2021
• Docket Number: 745 KA 17-01377
• Citation: 2021 NY Slip Op 05421
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. THOMAS B. NEWSOME, DEFENDANT-APPELLANT.
• Court: New York Supreme Court

2021 NY Slip Op 05421

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
THOMAS B. NEWSOME, DEFENDANT-APPELLANT.

No. 745 KA 17-01377

Supreme Court of New York, Fourth Department

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.

Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered May 1, 2017. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.

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 [4th Dept 2018], lv denied 31 N.Y.3d 1088 [2018]; People v VanDeViver, 56 A.D.3d 1118, 1118 [4th Dept 2008], lv denied 11 N.Y.3d 931 [2009], reconsideration denied 12 N.Y.3d 788 [2009]). This case does not fall within the rare exception to the preservation requirement (see People v Lopez, 71 N.Y.2d 662, 666 [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 [4th Dept 2020], lv denied 35 N.Y.3d 968 [2020]; People v Henderson, 162 A.D.3d 1507, 1508 [4th Dept 2018], lv denied 32 N.Y.3d 1004 [2018]), we nevertheless reject it. We conclude that there is "no indication in the 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 [4th Dept 2007], lv denied 9 N.Y.3d...