        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

154
KA 10-02424
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VICTORIA L. CONNORS, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered November 10, 2010. The judgment convicted
defendant, upon her plea of guilty, of criminal sale of a controlled
substance in the third degree (two counts) and criminal sale of a
controlled substance in the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of, inter alia, two counts of criminal sale of
a controlled substance in the third degree (Penal Law § 220.39 [1]).
To the extent that defendant’s contention that she was denied
effective assistance of counsel survives her plea of guilty, we
conclude that it is without merit (see People v Garner, 86 AD3d 955,
956). Defendant received an advantageous plea, and “nothing in the
record casts doubt on the apparent effectiveness of counsel” (People v
Ford, 86 NY2d 397, 404).

     We also reject defendant’s contention that County Court abused
its discretion in failing sua sponte to order an examination pursuant
to CPL 730.30 (1) in light of her history of mental illness and her
psychiatric hospitalization for suicidal ideation. It is well
established that a defendant is presumed to be competent and that a
“history of psychiatric illness does not in itself call into question
defendant’s competence to stand trial” (People v Tortorici, 92 NY2d
757, 765, cert denied 528 US 834). Defendant was represented by two
attorneys during the course of the proceedings, who were “ ‘in the
best position to assess defendant’s capacity and request an
examination,’ ” and neither of them did so (People v Chicherchia, 86
AD3d 953, 954), despite the fact that the court asked the first
attorney whether an examination should be conducted while defendant
was hospitalized. The court had the opportunity to observe defendant
                                 -2-                           154
                                                         KA 10-02424

at the time of her arraignment and during the joint plea-sentencing
proceedings, at which time the court questioned defendant regarding
her treatment and her understanding of the proceedings. Defendant
informed the court that the medication she was taking helped her
condition, that it did not impair her ability to understand the
proceedings, and that she understood that the decision to plead guilty
was her own. We therefore conclude that the court, as well as
defendant’s own attorneys, had an adequate opportunity to assess her
competency.

     Defendant contends for the first time on appeal that the court
improperly ordered her to pay restitution to a law enforcement agency
for buy money without an affidavit attesting, inter alia, that the
funds were expended in the actual purchase of a controlled substance,
as required by Penal Law § 60.27 (9) (see People v Diallo, 88 AD3d
1152, 1153), and thus her contention is not preserved for our review
(see CPL 470.05 [2]). In any event, defendant agreed to the amount of
restitution as a condition of her plea, and she therefore is deemed to
have waived her contention (see People v Farewell [appeal No. 1], 90
AD3d 1502). Finally, defendant has served the imprisonment portion of
her sentence, and we conclude that the imposition of two years of
postrelease supervision is not unduly harsh or severe.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
