People v. Smith

• Decision Date: 08 October 2021
• Docket Number: KA 18-00172,628
• Parties: The PEOPLE of the State of New York, Respondent, v. Vincent K. SMITH, Jr., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 1347
155 N.Y.S.3d 255

The PEOPLE of the State of New York, Respondent,
v.
Vincent K. SMITH, Jr., Defendant-Appellant.

628
KA 18-00172

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

Entered: October 8, 2021

CONNIE M. LOZINSKY, NIAGARA FALLS, FOR DEFENDANT-APPELLANT.

BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

198 A.D.3d 1347

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

Memorandum: Defendant appeals from a judgment convicting

198 A.D.3d 1348

him, upon his plea of guilty, of two counts of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ). By failing to move to withdraw

155 N.Y.S.3d 257

the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that, based on his alleged mental illness, his guilty plea was not voluntarily, knowingly and intelligently entered (see People v. Williams , 124 A.D.3d 1285, 1285, 999 N.Y.S.2d 642 [4th Dept. 2015], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] ; People v. Carpenter , 13 A.D.3d 1193, 1194, 786 N.Y.S.2d 683 [4th Dept. 2004], lv denied 4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88 [2005] ). 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] ; Carpenter , 13 A.D.3d at 1194, 786 N.Y.S.2d 683 ). The plea colloquy did not "clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea," and County Court therefore had no duty to conduct further inquiry with respect to the plea ( Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ).

Insofar as defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to investigate his history of mental illness and potential defenses, that contention involves matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL article 440 (see People v. Dizak , 93 A.D.3d 1182, 1185, 940 N.Y.S.2d 408 [4th Dept. 2012], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012], reconsideration denied 20 N.Y.3d 932, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ). To the extent that defendant contends defense counsel was ineffective for failing to request a competency hearing and to present evidence of defendant's mental health condition, that contention survives the guilty plea " ‘only to the extent that defendant contends that his plea was infected by the alleged ineffective assistance’ " ( People v. Brown , 305 A.D.2d 1068, 1069, 759 N.Y.S.2d 830 [4th Dept. 2003], lv denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 [2003] ; see 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] ), and we conclude that defendant was afforded meaningful representation. Defendant received an advantageous plea offer, and...