THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,VROBERT W. HENDERSON, JR., DEFENDANT-APPELLANT.D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FORDEFENDANT-APPELLANT.GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OFCOUNSEL), FOR RESPONDENT.Appeal from a judgment of the Oswego County Court (Donald E.Todd, J.), rendered August 12, 2013. The appeal was held by thisCourt by order entered June 17, 2016, decision was reserved, and thematter was remitted to Oswego County Court for further proceedings(140 AD3d 1761). The proceedings were held and completed.It is hereby ORDERED that the judgment so appealed from isunanimously affirmed.Memorandum: We previously held this case, reserved decision andremitted the matter to County Court to conduct a reconstructionhearing with respect to the portions of the plea proceeding that werenot transcribed because of the inaudibility of the digital recording(People v Henderson,140 AD3d 1761, 1761 [4th Dept 2016]). During thereconstruction hearing, the former prosecuting attorney anddefendant’s former attorney testified with respect to theirrecollections of defendant’s answers to questions, stating thatdefendant had responded affirmatively to all of the court’s questions.In its decision following the reconstruction hearing, the court, whichhad presided over the original plea proceeding, found that, duringportions of the plea proceeding that were transcribed as either“inaudible” or “no verbal response,” defendant had actually respondedaffirmatively to the court’s questions, indicating that he understoodthe court’s questions specifically and the proceedings generally.Based on the record of the reconstruction hearing and the originalplea proceeding, we now affirm.Contrary to defendant’s contention, the record establishes thathe knowingly, voluntarily and intelligently waived his right to appealand that he had “a full appreciation of the consequences” of thatwaiver (People v Seaberg,74 NY2d 1, 11 [1989];see generally People vLopez, 6 NY3d 248, 256 [2006]). In addition, “defendant’s history ofmental illness did not invalidate the waiver of the right to appealinasmuch as there was no showing that defendant was uninformed,confused or incompetent when he waived his right to appeal” (People vBrand, 112 AD3d 1320, 1321 [4th Dept 2013],lv denied23 NY3d 961[2014] [internal quotation marks omitted]). The valid waiver of theright to appeal forecloses defendant’s challenge to the severity ofthe sentence inasmuch as “there [was] a specific sentence promise atthe time of the waiver” (People v Brown, 115 AD3d 1204, 1206 [4th Dept2014],lv denied23 NY3d 1060 [2014] [internal quotation marksomitted];see generally Lopez, 6 NY3d at 255).Defendant further contends that the court erred in failing toorder a competency hearing sua sponte and that defense counsel wasineffective in failing to request such a hearing. Although thosecontentions survive the plea and the valid waiver of the right toappeal to the extent that they implicate the voluntariness of the plea(see People v Stoddard, 67 AD3d 1055, 1055 [3d Dept 2009],lvdenied14 NY3d 806 [2010];People v Jermain,56 AD3d 1165, 1165 [4thDept 2008],lv denied11 NY3d 926 [2009]), and they need not bepreserved for our review (see People v Winebrenner, 96 AD3d 1615,1615-1616 [4th Dept 2012],lv denied19 NY3d 1029 [2012];but seePeople v Chavis, 117 AD3d 1193, 1194 [3d Dept 2014]), we neverthelessconclude that the contentions lack merit. Generally, “[a] defendantis presumed competent . . . , and the court is under no obligation toissue an order of examination . . . unless it has ‘reasonable ground .. . to believe that the defendant was an incapacitated person’ “(People v Morgan, 87 NY2d 878, 880 [1995]). Moreover, “a ‘history ofpsychiatric illness does not in itself call into question defendant’scompetence’ to proceed” (People v Carpenter,13 AD3d 1193, 1194 [4thDept 2004],lv denied4 NY3d 797 [2005], quotingPeople v Tortorici,92 NY2d 757, 765 [1999],cert denied528 US 834 [1999]).We conclude, on the record of the reconstruction hearing and theoriginal plea proceeding, that nothing in the plea proceedingestablished that defendant’s mental illness or alleged failure to takemedication related thereto “so stripped [defendant] of orientation orcognition that he lacked the capacity to plead guilty” (People vAlexander, 97 NY2d 482, 486 [2002]). He “responded appropriately toquestioning by the court . . . and was ‘unequivocal in assuring thecourt that he understood the meaning of the plea proceeding, and theimplications of his decision to accept the plea agreement’ ” (People vYoho, 24 AD3d 1247, 1248 [4th Dept 2005];see People v Hibbard, 148AD3d 1538, 1539 [4th Dept 2017]). In addition, the court noted in itsdecision following the reconstruction hearing that it had held “anextensive dialog[ue] with [defendant] regarding his mental healthstatus,” after which the court was assured that defendant understoodthe proceedings. Thus, the court did not err in failing sua sponte toconduct a competency hearing, and defense counsel was not ineffectivein failing to request a competency hearing (see People v Jorge N.T.,70 AD3d 1456, 1457 [4th Dept 2010],lv denied14 NY3d 889 [2010]).Although defendant’s contention that the waiver of indictment wasjurisdictionally defective because it was not voluntarily,intelligently or knowingly entered and the written waiver was notsigned in open court is not precluded by the valid waiver of the rightto appeal and does not require preservation (see People v Waid, 26AD3d 734, 734-735 [4th Dept 2006],lv denied6 NY3d 839 [2006]), wenevertheless conclude that the contention lacks merit. The recordestablishes that defendant “entered a valid waiver of indictment, andfreely and voluntarily consented to be prosecuted by way of a superiorcourt information” (People v Lugg,108 AD3d 1074, 1074 [4th Dept2013];seeCPL 195.10), and following the reconstruction hearing thecourt ” ‘expressly found that defendant had executed the waiver inopen court,’ ” as required by CPL 195.20 (People v Myers, 145 AD3d1596, 1597 [4th Dept 2016],lv granted29 NY3d 1093 [2017]).Finally, defendant contends that his plea was not knowingly,voluntarily or intelligently entered due to his history of mentalillness. Although that contention survives the valid waiver of theright to appeal (see People v Watkins, 77 AD3d 1403, 1403 [4th Dept2010],lv denied15 NY3d 956 [2010]), that contention is not preservedfor our review (see People v Williams, 124 AD3d 1285, 1285 [4th Dept2015],lv denied25 NY3d 1078 [2015];Carpenter, 13 AD3d at 1194), andthis case does not fall within the rare exception to the preservationrequirement set forth inPeople v Lopez(71 NY2d 662, 666 [1988]). Inany event, the record of the reconstruction hearing and the originalplea proceeding establishes that the plea was knowingly, voluntarilyand intelligently entered (see People v Finch, 96 AD3d 1485, 1486 [4thDept 2012];Watkins,77 AD3d at 1403-1404).Mark W. BennettEntered: June 8, 2018Clerk of the Court
