People v Ortiz

People v Ortiz 2007 NY Slip Op 10280 [46 AD3d 1409] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent, v Josue Ortiz, Appellant.

—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido of counsel), for defendant-appellant.

Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.

Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered June 16, 2006. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of manslaughter in the first degree (Penal Law § 125.20 [1]). We note at the outset that the plea proceedings and sentencing were conducted by County Court and that the hearings that preceded the plea were conducted by Supreme Court (Joseph S. Forma, J.).

We conclude that the evidence presented at the competency hearing conducted by Supreme Court pursuant to CPL 730.30 supports the court's determination that defendant was at that time fit to proceed (see People v Brown, 4 AD3d 886, 886-887 [2004], lv denied 3 NY3d 637 [2004]; see also People v Mendez, 1 NY3d 15, 20 [2003]). Contrary to defendant's contention, the court complied with the requirements of CPL 730.30 and was not required to order additional competency examinations. Nothing in the record suggests that defendant's condition deteriorated between the time of the psychiatric examinations and the time of the competency hearing (see People v Lewis, 302 AD2d 322, 323 [2003], lv denied 100 NY2d 540 [2003]) and, contrary to defendant's contention, the court did not fail to comply with CPL article 730 when it made an informal request for an update of defendant's condition from defendant's treating psychiatrist (see People v Conforti, 263 AD2d 513 [1999], lv denied 94 NY2d 878 [2000]; People v Sims, 217 AD2d 912 [1995], lv denied 87 NY2d 851 [1995]).

We agree with defendant that his waiver of the right to appeal is invalid because County Court, in conducting the plea proceedings, did not "engage [him] in an adequate colloquy to ensure that the waiver . . . was a knowing and voluntary choice" (People v Kemp, 255 AD2d 397, 397 [1998]). Thus, the contention of defendant that Supreme Court erred in refusing to suppress his statements to the police is properly before us (cf. People v Kemp, 94 NY2d 831, 833 [1999]). Nevertheless, we reject that contention. The record of the Huntley hearing supports the court's conclusions that defendant was not in custody before he made incriminatory statements (see [*2]People v Flores, 23 AD3d 194, 195 [2005], lv denied 6 NY3d 775 [2006]; People v Rivera, 4 AD3d 131 [2004], lv denied 2 NY3d 805 [2004]), Miranda warnings were properly given after such statements were made, and defendant validly waived his rights before making further statements (see People v Zeigler, 299 AD2d 910, 911 [2002], lv denied 99 NY2d 586 [2003]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.