People v. Rought

• Decision Date: 15 December 2011
• Citation: 934 N.Y.S.2d 617,90 A.D.3d 1247,2011 N.Y. Slip Op. 09048
• Parties: The PEOPLE of the State of New York, Respondent, v. Todd A. ROUGHT, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09048

90 A.D.3d 1247

934 N.Y.S.2d 617

The PEOPLE of the State of New York, Respondent,

v.Todd A. ROUGHT, Appellant.

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

Dec. 15, 2011.

Linda B. Johnson, West Sand Lake, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Brian T. Leeds of counsel), for respondent.

Before: PETERS, J.P., SPAIN, McCARTHY, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered January 12, 2009, convicting defendant upon his plea of guilty of the crimes of course of sexual conduct against a child in the first degree (two counts), rape in the second degree and endangering the welfare of a child (two counts).

Defendant was charged in an indictment with course of sexual conduct against a child in the first degree (two counts), rape in the second degree and endangering the welfare of a child (two counts). He agreed to plead guilty as charged and was thereafter sentenced pursuant to the plea agreement to an aggregate prison term of eight years, to be followed by 10 years of postrelease supervision. Defendant now appeals.

We affirm. Defendant's contentions that his plea was not knowing, voluntary and intelligent due to mental incompetence and that County Court erred in accepting his plea without holding a competency hearing pursuant to CPL 730.30 are not preserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Stoddard, 67 A.D.3d 1055, 1055, 889 N.Y.S.2d 282 [2009], lv. denied 14 N.Y.3d 806, 899 N.Y.S.2d 140, 925 N.E.2d 944 [2010]; People v. Bennett, 30 A.D.3d 631, 631, 817 N.Y.S.2d 399 [2006], lv. denied 7 N.Y.3d 809, 822 N.Y.S.2d 484, 855 N.E.2d 800 [2006] ). Moreover, contrary to defendant's assertion, he did not make any statements during the plea allocution that negated an essential element of the crime or otherwise cast doubt upon his guilt so as to trigger the narrow exception to the preservation requirement ( see People v. McFarren, 83 A.D.3d 1209, 1209–1210, 921 N.Y.S.2d 391 [2011], lv. denied 17 N.Y.3d 860, 932 N.Y.S.2d 26, 956 N.E.2d 807 [2011]; People v. Coons, 73 A.D.3d 1343, 1345, 901 N.Y.S.2d 406 [2010], lv. denied 15 N.Y.3d 803, 908 N.Y.S.2d 163, 934 N.E.2d 897 [2010] ). In any event, there is no evidence in the record that defendant lacked the capacity to enter a knowing, voluntary and intelligent plea. He participated in his plea allocution, gave coherent responses to County Court's questions and confirmed that he understood the proceedings and the ramifications of his guilty plea. Accordingly, were this issue properly before us, we would find no abuse of discretion in the court's acceptance of defendant's plea without holding a competency hearing ( see People v. Bennett, 30 A.D.3d at 631, 817 N.Y.S.2d 399; People v. Woodard, 17 A.D.3d 929, 930, 793 N.Y.S.2d 622 [2005], lv. denied 5 N.Y.3d 811, 803 N.Y.S.2d 40, 836 N.E.2d 1163 [2005] ).

Defendant further contends that the plea colloquy was insufficient due to the failure to advise him that his potential confinement pursuant to the Sex Offender Management and Treatment Act was of an indefinite duration ( see Mental Hygiene Law art. 10). However, and as counsel notes, County Court explicitly informed defendant of the evaluation that would be performed and the risk of continuing civil confinement, defense counsel stated that he had discussed this possibility with defendant, and defendant confirmed that he had reviewed the matter with his counsel. Accordingly, we do not find the plea involuntary on this ground ( see People v. Harnett, 16 N.Y.3d 200, 207–208, 920 N.Y.S.2d 246, 945 N.E.2d 439 [2011]; People v. Okamura, 84 A.D.3d 1413, 1413, 924 N.Y.S.2d 286 [2011], lv. denied 17...