People v. Dunn

May 7, 1999
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—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of arson in the third degree (Penal Law § 150.10 [1]). The contention of defendant ‍‌‌​‌‌​‌‌​​‌‌​​‌​‌‌‌‌‌​​​​​​‌‌​​​​​​​​​‌​​​‌‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌​​‍that he was denied effective assistance of counsel does not survive his guilty plea because there is no indication that the alleged ineffective assistance had any impact on the plea bargaining process or the voluntariness of the plea (see, People v Conyers, 227 AD2d 793, lv denied 88 NY2d 982; People v Lopez, 212 AD2d 1053, lv denied 85 NY2d 976; People v Wood, 207 AD2d 1001). Insofar ‍‌‌​‌‌​‌‌​​‌‌​​‌​‌‌‌‌‌​​​​​​‌‌​​​​​​​​​‌​​​‌‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌​​‍as defendant alleges that he was denied effective assistance because defense counsel did not request a competency hearing, there is no evidence in the rec*941ord that defendant may have been incompetent. Moreover, defendant has failed to demonstrate that defense counsel lacked a legitimate reason for not requesting a competency hearing (see, People v Wheeler, 249 AD2d 774, 775).

We reject defendant’s ‍‌‌​‌‌​‌‌​​‌‌​​‌​‌‌‌‌‌​​​​​​‌‌​​​​​​​​​‌​​​‌‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌​​‍farther contention that County Court, sua sponte, should have ordered a competency evaluation (see, People v Wheeler, supra; see also, People v Carbone, 159 AD2d 511, lv denied 76 NY2d 732). There is no evidence in the record that would have warranted the court to question defendant’s competency or ability to understand the nature of the proceedings or the charges (see, People v Oldring, 191 ‍‌‌​‌‌​‌‌​​‌‌​​‌​‌‌‌‌‌​​​​​​‌‌​​​​​​​​​‌​​​‌‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌​​‍AD2d 346, lv denied 81 NY2d 1077; see also, People v Parker, 191 AD2d 717, lv denied 81 NY2d 1078).

The contentions that defendant was denied effective assistance of counsel because he had a conflict of interest with his attorney and because the prosecutor improperly promised codefendants leniency in exchange for testimony against defendant are not reviewable on this record. The proper vehicle for raising ‍‌‌​‌‌​‌‌​​‌‌​​‌​‌‌‌‌‌​​​​​​‌‌​​​​​​​​​‌​​​‌‌​‌​​‌​​‌​‌​​‌​‌‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​‌​‌​​‍such issues is a CPL 440.10 motion. (Appeal from Judgment of Herkimer County Court, Kirk, J. — Arson, 3rd Degree.) Present — Denman, P. J., Pine, Lawton, Hurlbutt and Balio, JJ.