                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     106809
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ROBERT S. SCHREINER,
                    Appellant.
________________________________


Calendar Date:   April 22, 2016

Before:   Garry, J.P., Lynch, Devine and Mulvey, JJ.

                             __________


     Mark Gaylord, Schenectady, for appellant.

      James Sacket, District Attorney, Schoharie (Michael L.
Breen of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Schoharie
County (Bartlett III, J.) rendered September 11, 2013, convicting
defendant upon his plea of guilty of the crime of criminal sexual
act in the first degree (two counts).

      On September 11, 2013, in satisfaction of a 12-count
indictment, defendant, a former school counselor, pleaded guilty
to two counts of criminal sexual act in the first degree and
waived his right to appeal. As part of the plea agreement, the
sentence was to run concurrently with the sentence imposed on
September 6, 2013 in Otsego County for similar acts involving the
same victim. County Court thereafter sentenced defendant in
accord with the negotiated plea bargain to a prison term of 12
years to be followed by 15 years of postrelease supervision.
                              -2-                106809

Defendant now appeals.

      We affirm. Defendant maintains that County Court erred in
failing to have his competency evaluated when it came to light at
sentencing that defendant had been taken off his depression
medication upon his incarceration in Otsego County on September
6, 2013. Defendant further contends that counsel's failure to
move to withdraw his plea deprived him of the effective
assistance of counsel. While these claims survive the appeal
waiver, defendant acknowledges that the arguments were not
preserved through an appropriate postallocution motion (see
People v Stover, 123 AD3d 1232, 1232 [2014], lv denied 26 NY3d
936 [2015]; People v Vandemark, 117 AD3d 1339, 1340 [2014], lv
denied 24 NY3d 965 [2014]), and he therefore requests that we
vacate the plea in the interest of justice (see CPL 470.15 [6]
[a]). We decline to do so.

      Were this issue before us we would find, and defendant
admits, that there is nothing in the plea transcript that would
indicate that he was in any way incapacitated at the time of his
plea. Our review of the sentencing minutes shows that both
defendant and defense counsel raised the medication/incapacity
issue to explain defendant's assertion of innocence during the
September 23, 2013 presentence interview – not to claim that he
was incapacitated at the time of his plea. Notably, defense
counsel explained that once medication was resumed on October 4,
2013 defendant was "fine." We recognize that the presentence
report comments that defendant's behavior was combative and
erratic during his incarceration in Otsego County, but there is
nothing in the report nor in the record calling defendant's
capacity into question during the plea proceeding. We also take
note that during a second interview with the Probation
Department, defendant acknowledged his guilt. As for certain
opinion comments in the presentence report, defense counsel duly
objected (see CPL 390.30), and we perceive no prejudice given
that the court sentenced defendant in accord with the negotiated
plea agreement.

     Garry, J.P., Devine and Mulvey, JJ., concur.
                        -3-                  106809

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
