People v Agrusti

People v Agrusti 2014 NY Slip Op 08514 Decided on December 4, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 4, 2014
105665

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

EDWARD AGRUSTI, Appellant.

Calendar Date: October 8, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.

Brian M. Callahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Garry, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered January 8, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the third degree.

Defendant pleaded guilty to one count of criminal possession of a forged instrument in the third degree in satisfaction of a four-count indictment stemming from an incident in which he attempted to pass a forged check. The plea agreement included the waiver of defendant's right to appeal.

Defendant appeals, arguing that he lacked the competency to enter his plea, and that County Court erred in failing to order a

second competency hearing prior to accepting his plea [FN1]. As it implicates the voluntariness of the plea, this argument is not foreclosed by defendant's appeal waiver; it is, however, unpreserved, as defendant did not seek relief by means of an appropriate postallocution motion (see People v Chavis, 117 AD3d 1193, 1194 [2014]; People v Mattison, 94 AD3d 1157, 1158 [2012]). Nor do we find the narrow exception to the preservation requirement to be applicable here, as defendant [*2]did not make any statements during his plea allocution that would cast doubt on his guilt or negate an element of the crime (see e.g. People v Ladieu, 105 AD3d 1265, 1266 [2013], lv denied 21 NY3d 1017 [2013]). In any event, we would have found no abuse of discretion in the court's failure to order a second competency hearing (see People v Tortorici, 92 NY2d 757, 765-766 [1999], cert denied 528 US 834 [1999]; People v Dantzler, 63 AD3d 1376, 1377-1378 [2009], lv denied 14 NY3d 799 [2010]).

Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.

Footnotes

Footnote 1: Defendant had previously been declared incompetent, but had been reevaluated and found competent following a period of confinement and care.