           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
570
KA 10-00698
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

LESLIE J. BARRETT, DEFENDANT-APPELLANT.


CHRISTOPHER HAMMOND, COOPERSTOWN, FOR DEFENDANT-APPELLANT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered February 19, 2010. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of burglary in the third degree (Penal Law §
140.20). Defendant’s contention that his guilty plea was not
voluntary because the presentence report suggested that he may not
have been competent at the time of the plea is not preserved for our
review, and the narrow exception to the preservation requirement does
not apply inasmuch as defendant did not make any statements during the
plea allocution “that were inconsistent with his guilt or otherwise
called into question the voluntariness of his plea” (People v Coons,
73 AD3d 1343, 1344, lv denied 15 NY3d 803; see People v Carpenter, 13
AD3d 1193, lv denied 4 NY3d 797). In any event, that contention is
without merit. County Court did not abuse its discretion in failing
sua sponte to order a competency exam based on the information
presented in the presentence report concerning defendant’s mental
health and substance abuse issues (see Coons, 73 AD3d at 1345; People
v Ortiz, 62 AD3d 1034; People v Jermain, 56 AD3d 1165, lv denied 11
NY3d 926). The sentence is not unduly harsh or severe.




Entered:   May 6, 2011                             Patricia L. Morgan
                                                   Clerk of the Court
