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

748.1
KA 05-00172
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

CYRIL WINEBRENNER, DEFENDANT-APPELLANT.


JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Patricia D.
Marks, J.), rendered March 30, 2005. The judgment convicted
defendant, upon his plea of guilty, of murder in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of murder in the first degree (Penal Law § 125.27 [1] [a]
[vi]; [b]), defendant contends that County Court abused its discretion
in failing, sua sponte, to order a competency examination pursuant to
CPL 730.30 (1). In support of his contention, defendant relies on
evidence contained in the presentence report and his sentencing
memorandum, both of which were received by the court after defendant
entered his plea. Before addressing the merits of defendant’s
contention, we note “that the issue of competency to stand trial may
be raised on appeal despite the absence of any objection to the . . .
court’s failure to cause the defendant to be examined” (People v
Armlin, 37 NY2d 167, 172; see People v Bennefield, 306 AD2d 911, 912;
People v Moore, 203 AD2d 900, 900, lv denied 84 NY2d 830; People v
Meurer, 184 AD2d 1067, 1068, lv dismissed 80 NY2d 835, lv denied 80
NY2d 907; see also People v Keebler, 15 AD3d 724, 726, lv denied 4
NY3d 854; People v Frazier, 114 AD2d 1038, 1039, lv denied 67 NY2d
883). To the extent that our decision in People v Bryant (87 AD3d
1270, 1271, lv denied 18 NY3d 881) stated that preservation of such a
contention was required, we disavow that statement.

     With respect to the merits of defendant’s contention, “[i]t is
fundamental that the trial of a criminal defendant while he is
mentally incompetent violates due process” (People v Arnold, 113 AD2d
101, 102). The test for competency “is whether the defendant has
sufficient present ability to consult with his [or her] lawyer with a
reasonable degree of rational understanding—and whether he [or she]
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                                                         KA 05-00172

has a rational as well as factual understanding of the proceedings
against him [or her]” (id. [internal quotation marks omitted]), and a
court may sua sponte order a competency examination at any time before
a final judgment is entered (see People v Smyth, 3 NY2d 184, 187,
rearg denied 3 NY2d 942; see also Armlin, 37 NY2d at 171). “In
determining whether a . . . court should have invoked the procedures
of CPL article 730 and directed an examination and hearing on
defendant’s competency, the focus is on what the . . . court did in
light of what it knew or should have known of the defendant at any
time before final judgment . . . The test to be applied has been
formulated as follows: ‘Did the . . . judge receive information
which, objectively considered, should reasonably have raised a doubt
about defendant’s competency and alerted [the judge] to the
possibility that the defendant could neither understand the
proceedings or appreciate their significance, nor rationally aid his
[or her] attorney in [the] defense’ ” (Arnold, 113 AD2d at 102-103).

     We agree with the People that, before the court received the
presentence report and sentencing memorandum, there is nothing in this
record that would have alerted the court to any issue concerning
defendant’s competency. “ ‘[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 guilty plea’ ” (People
v Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d 869). Thus, any
contention that the court should have sua sponte ordered a competency
examination before accepting defendant’s plea lacks merit.

     We further conclude that the evidence contained in the
presentence report and sentencing memorandum did not raise any doubt
about defendant’s competency at the time of the plea or at the time of
sentencing. Those documents established that, 10 months before the
crime and 2½ years before the plea, defendant had a 24-hour
hospitalization that was allegedly caused by a conversion disorder.
At the time of the plea and at sentencing, defendant spoke coherently
about his role in the crime and his remorse for his actions. He
indicated that he understood that he was entering a plea of guilty,
and he responded appropriately to the court’s questions (see People v
Majors, 73 AD3d 1382, 1382-1383, lv denied 15 NY3d 775; People v
Brown, 9 AD3d 884, 885, lv denied 3 NY3d 671; People v Murray, 255
AD2d 997, lv denied 93 NY2d 975; cf. Arnold, 113 AD2d at 103-104;
People v Cartagena, 92 AD2d 901, 901-902). The court was able to
observe defendant and to interact with him (see People v Yu-Jen Chang,
92 AD3d 1132, 1134-1135; People v Chicherchia, 86 AD3d 953, 954, lv
denied 17 NY3d 952), and “defense counsel, who was in the best
position to assess defendant’s capacity, did not raise the issue of
defendant’s fitness to proceed or request an examination pursuant to
CPL 730.30 (2)” (Brown, 9 AD3d at 885 [internal quotation marks
omitted]; see Chicherchia, 86 AD3d at 954).

     Defendant further contends that he was denied effective
assistance of counsel because defense counsel allowed defendant to
plead guilty without an adequate inquiry into his mental state. We
reject that contention. Defendant has “failed to ‘demonstrate the
absence of strategic or other legitimate explanations’ . . . for the
                                 -3-                           748.1
                                                         KA 05-00172

absence of a psychiatric . . . defense” (People v Leiva, 59 AD3d 161,
162, lv denied 12 NY3d 818, quoting People v Rivera, 71 NY2d 705, 709;
see People v Williams, 41 AD3d 1252, 1254; People v Alexander, 266
AD2d 906, lv denied 94 NY2d 916), and the record on appeal establishes
that defense counsel attempted to obtain the records related to
defendant’s hospital admission but had no success. In any event, as
the People correctly noted at oral argument of this appeal,
defendant’s challenge to defense counsel’s investigative efforts
“involves matter[s] which [are] dehors the record and is not properly
presented on direct appeal” (People v Miller, 81 AD3d 854, 855, lv
denied 16 NY3d 861).




Entered:   June 15, 2012                       Frances E. Cafarell
                                               Clerk of the Court
