People v. Vandemark

• Decision Date: 29 May 2014
• Parties: The PEOPLE of the State of New York, Appellant, v. Karen VANDEMARK, Respondent.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1339
986 N.Y.S.2d 684
2014 N.Y. Slip Op. 03883

The PEOPLE of the State of New York, Appellant,
v.
Karen VANDEMARK, Respondent.

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

May 29, 2014.

[986 N.Y.S.2d 685]

Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of counsel), for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, ROSE, EGAN JR. and LYNCH, JJ.

ROSE, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April 3, 2012 in Albany County, convicting defendant upon her plea of guilty of the crime of assault in the second degree.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to assault in the second degree in full satisfaction of a four-count indictment arising out of her attack on her elderly, wheelchair-bound stepfather with a baseball bat. She also waived her right to appeal. In accordance with the terms of the plea agreement, County Court thereafter sentenced defendant as a second felony offender to a prison term of six years, followed by five years of postrelease supervision. Defendant appeals.

Defendant's arguments that her plea was not voluntary and that she was not afforded the effective assistance of counsel are not preserved for our review as the record does not reflect that she made an appropriate postallocution motion ( see People v. White, 104 A.D.3d 1056, 1056, 961 N.Y.S.2d 603 [2013],lvs. denied21 N.Y.3d 1018, 1021, 971 N.Y.S.2d 500, 503, 994 N.E.2d 396, 399 [2013];People v. Lopez, 52 A.D.3d 852, 853, 859 N.Y.S.2d 267 [2008] ). Also, defendant's contention that Supreme Court abused its discretion in not conducting a competency hearing prior to accepting her guilty plea is similarly unpreserved ( see

[986 N.Y.S.2d 686]

People v. Riley, 97 A.D.3d 982, 983, 947 N.Y.S.2d 917 [2012],lv. denied20 N.Y.3d 935, 957 N.Y.S.2d 695, 981 N.E.2d 292 [2012];People v. Rought, 90 A.D.3d 1247, 1248, 934 N.Y.S.2d 617 [2011],lv. denied18 N.Y.3d 962, 944 N.Y.S.2d 490, 967 N.E.2d 715 [2012] ). Nor did she make any statements during the plea colloquy that negated an essential element of the crime or cast doubt upon her guilt so as to invoke the exception to the preservation requirement ( see People v. Rought, 90 A.D.3d at 1248, 934 N.Y.S.2d 617). Were we to consider her contentions, in any event, we would find that defendant's plea was knowing and voluntary. Supreme Court reviewed two competency reports that...