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

204
KA 13-01847
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM C. TRACY, DEFENDANT-APPELLANT.


ADAM H. VAN BUSKIRK, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered September 5, 2013. The judgment convicted
defendant, upon his plea of guilty, of rape in the third degree (four
counts) and endangering the welfare of a child.

     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 four counts of rape in the third degree
(Penal Law § 130.25 [2]) and one count of endangering the welfare of a
child (§ 260.10 [1]). County Court did not abuse its discretion in
denying defendant’s motion to withdraw his guilty plea on the ground
that, as the result of his mental illness and use of psychiatric
medication, the plea was not voluntarily, knowingly, and intelligently
entered (see generally People v Fiumefreddo, 82 NY2d 536, 543-544).
The record supports the court’s conclusion that defendant’s “plea was
knowing, voluntary and intelligent, and that his psychiatric condition
and medications did not undermine his ability to understand the terms
and consequences of his guilty plea” (People v Mack, 90 AD3d 1317,
1321).

     The court also properly refused to suppress defendant’s statement
to the police on the ground that he was impaired by medication during
the interrogation and thus did not validly waive his Miranda rights.
The evidence at the suppression hearing supports the court’s
determination that defendant effectively waived his Miranda rights,
including the right to counsel (see People v Twillie, 28 AD3d 1236,
1237, lv denied 7 NY3d 795). Contrary to defendant’s contention, the
record does not establish that “he was under the influence of
medication at the time he waived those rights ‘to the degree of mania,
or of being unable to understand the meaning of his statement[]’ ”
(People v Dasher, 109 AD3d 1125, 1125, lv denied 22 NY3d 1040, quoting
                                 -2-                           204
                                                         KA 13-01847

People v Schompert, 19 NY2d 300, 305, cert denied 389 US 874).

     We reject defendant’s contention that the court erred in failing,
sua sponte, to appoint new counsel to represent defendant on his
motion to withdraw the guilty plea. Contrary to defendant’s
contention, defense counsel did not take a position adverse to
defendant with respect to that motion (see People v Wolf, 88 AD3d
1266, 1268, lv denied 18 NY3d 863). Finally, the sentence is not
unduly harsh or severe.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
