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

863
KA 10-01129
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS BRYANT, DEFENDANT-APPELLANT.


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

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (MARSHALL A. KELLY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered April 9, 2009. The judgment convicted defendant, upon
his plea of guilty, of attempted promoting prison contraband in the
first 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 attempted promoting prison contraband in
the first degree (Penal Law §§ 110.00, 205.25 [2]). Contrary to
defendant’s contention, he knowingly, intelligently and voluntarily
waived his right to appeal as a condition of the plea bargain (see
generally People v Lopez, 6 NY3d 248, 256). “County Court engage[d]
the defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice” (People v James,
71 AD3d 1465, 1465 [internal quotation marks omitted]), and the record
establishes that defendant “ ‘understood that the right to appeal is
separate and distinct from those rights automatically forfeited upon a
plea of guilty’ ” (People v Dunham, 83 AD3d 1423, 1424, quoting Lopez,
6 NY3d at 256).

     Defendant further contends that the court abused its discretion
in denying his motion to withdraw his Alford plea. Although that
contention “ ‘survives his waiver of the right to appeal to the extent
that [it] implicates the voluntariness of the plea’ ” (People v Dash,
74 AD3d 1859, 1860, lv denied 15 NY3d 892; see People v Toliver, 82
AD3d 1581), we conclude that it is without merit. “The contention of
defendant that his plea was involuntary because he was coerced by
[correctional facility personnel] is belied by his responses to the
court’s questions during the plea colloquy, indicating that he was
pleading guilty voluntarily and that no threats or promises had
induced the plea” (Toliver, 82 AD3d at 1582). Defendant’s challenge
                                 -2-                           863
                                                         KA 10-01129

to the factual sufficiency of the plea allocution is encompassed by
the valid waiver of the right to appeal and is unpreserved for our
review inasmuch as he did not move to withdraw the plea or to vacate
the judgment of conviction on that ground (see People v McCarthy, 83
AD3d 1533, 1534). In any event, defendant’s challenge lacks merit
inasmuch as there is no requirement that an Alford plea contain a
recitation of “ ‘every essential element’ ” of the crime (People v
Hill, 16 NY3d 811, 814).

     The further contention of defendant that the court erred in
failing sua sponte to conduct a competency hearing pursuant to CPL
730.30 (2) is not encompassed by his valid waiver of the right to
appeal to the extent that it implicates the voluntariness of the plea
(see People v Stoddard, 67 AD3d 1055, lv denied 14 NY3d 806). That
contention, however, is unpreserved for our review inasmuch as
defendant failed to move to withdraw the plea or to vacate the
judgment of conviction on that ground (see id.). In any event,
defendant’s contention lacks merit. The court issued an order of
examination pursuant to CPL 730.30 (1), and both psychiatric examiners
who evaluated defendant concluded that he was competent to proceed.
It “is well settled that a defendant is not entitled, as a matter of
right, to have the question of his capacity to stand trial passed upon
. . . if the court is satisfied from the available information that
there is no proper basis for questioning the defendant’s sanity”
(People v Mills, 28 AD3d 1156, 1156-1157, lv denied 7 NY3d 903
[internal quotation marks omitted]; see CPL 730.30 [2]; People v
Morgan, 87 NY2d 878, 880). “ ‘Moreover, it is noted that defense
counsel . . . was in the best position to assess defendant’s capacity
and request an examination pursuant to CPL 730.30 (2)’ ” (People v
Jermain, 56 AD3d 1165, 1165, lv denied 11 NY3d 926). Here, defense
counsel did not request a competency hearing but, rather, he informed
the court that defendant had received medication, understood the
proceedings and was able to participate in his own defense (see id.;
People v Loria, 12 AD3d 1125, lv denied 4 NY3d 746, 749). Defendant
further contends that he was denied effective assistance of counsel
based on the failure of defense counsel to request a competency
hearing. To the extent that defendant’s contention survives the plea
and waiver of the right to appeal (see People v Gimenez, 59 AD3d 1088,
lv denied 12 NY3d 816; cf. People v Burke, 256 AD2d 1244, lv denied 93
NY2d 851), we conclude that it is lacking in merit (see generally
People v Ford, 86 NY2d 397, 404). “[T]here is no indication in the
record that defendant was unable to understand the proceedings or that
he was mentally incompetent at the time he entered his [Alford] plea .
. ., and [t]here can be no denial of effective assistance of . . .
counsel arising from [defense] counsel’s failure to make a motion or
argument that has little or no chance of success” (People v Jorge
N.T., 70 AD3d 1456, 1457, lv denied 14 NY3d 889).

     Finally, defendant’s challenge to the severity of the sentence is
encompassed by the valid waiver of the right to appeal (see Lopez, 6
                                 -3-                          863
                                                        KA 10-01129

NY3d at 255-256; People v Hidalgo, 91 NY2d 733, 737).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
