People v. Sulaiman

• Decision Date: 09 December 2015
• Citation: 20 N.Y.S.3d 650,134 A.D.3d 860
• Parties: The PEOPLE, etc., respondent, v. Khemchan SULAIMAN, appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 860

20 N.Y.S.3d 650

The PEOPLE, etc., respondent,

v.Khemchan SULAIMAN, appellant.

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

Dec. 9, 2015.

Leon H. Tracy, Jericho, N.Y., for appellant.

Madeline Singas, Acting District Attorney, Mineola, N.Y. (Jacqueline Rosenblum and Andrea M. DiGregorio of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Quinn, J.), rendered April 24, 2014, convicting him of attempted murder in the second degree, assault in the first degree, assault in the second degree (two counts), aggravated criminal contempt (two counts), criminal contempt in the first degree (two counts), and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court should have, sua sponte, ordered an additional competency evaluation of the defendant or a second competency hearing is without merit. On two separate occasions, the court issued an order of examination pursuant to CPL 730.30(1). The psychologist and the psychiatrist designated as the psychiatric examiners pursuant to those respective orders each found the defendant fit to proceed. A psychiatrist retained by defense counsel to evaluate the defendant prepared a report and did not conclude that the defendant was unfit to proceed. The court conducted a competency hearing and considered the report of the psychiatrist retained by defense counsel, the reports and testimony of the designated psychiatric examiners, and testimony of civilian witnesses. Based upon this evidence, the court providently exercised its discretion in determining that the defendant was competent and fit to proceed to trial (see People v. Burley, 118 A.D.3d 720, 720, 986 N.Y.S.2d 853 ; People v. Bennett, 63 A.D.3d 1086, 1087, 880 N.Y.S.2d 565 ; People v. Berry, 45 A.D.3d 693, 850 N.Y.S.2d 111 ).

The defendant also contends that he was deprived of the effective assistance of counsel because his attorney failed to ensure that he was fit to proceed, and did not request an adjournment of the competency hearing in order to retain another psychiatrist to evaluate him or move for a second competency hearing. The record as a whole reveals that the defendant received meaningful representation (see People v. Jermain, 56 A.D.3d 1165, 867 N.Y.S.2d 326 ; People v. Ferrer, 16 A.D.3d 913, 914–915, 791 N.Y.S.2d 721 ; see generally People v. Colon, 61 A.D.3d 772, 773, 876 N.Y.S.2d 525 ), and that counsel's representation did not fall below an objective standard of reasonableness (see generally Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 ). "[T]here can be no deprivation of effective assistance of counsel arising from counsel's failure to make a motion that had little or no chance of success" (People v. Shaffer, 81 A.D.3d 989, 990, 917 N.Y.S.2d 267 ).

The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, since he did not move to withdraw the plea (see People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ; People v. Epps, 118 A.D.3d 1018, 987 N.Y.S.2d 855 ; People v. Carr, 89 A.D.3d 1033, 1034, 933 N.Y.S.2d 372 ; People v. Trent, 74 A.D.3d 1370, 903 N.Y.S.2d 236 ; People v. Hemion, 37 A.D.3d 616, 616–617, 828 N.Y.S.2d 815 ). Contrary to the defendant's contention, the narrow exception to the preservation rule does not apply here (see People v. Azor, 124 A.D.3d 671, 672, 1 N.Y.S.3d 284 ; see also People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, the plea was knowingly, voluntarily, and intelligently entered. The mere fact that the defendant may...