Defendant moves, pro se, to vacate judgment, pursuant to Criminal Procedure Law § 440.10, and to vacate [*2]sentence, pursuant to Criminal Procedure Law § 440.20.The People have responded in opposition to the motion; defendant has filed a "Reply to Prosecutions [sic] Motion in Opposition" and a "Supplementary Legal Memorandum" in reply.

On February 3, 2006, defendant offered guilty pleas to one count of murder in the second degree, as charged in indictment numbered I-96-2005 and to one count of rape in the third degree as charged in indictment numbered I-94-2005. The pleas were accepted by this Court.

On March 9, 2006, the defendant was sentenced to an indeterminate term of 20 years to life with a recommendation of no parole upon his conviction of murder in the second degree. On the same day, defendant was also sentenced to an indeterminate sentence of incarceration of one year to three years upon his conviction of rape in the third degree. The sentences were ordered to be served consecutively. This Court also imposed certain fines, surcharges, and restitution. The financial aspects of the sentences are not challenged in the instant motion.

Although each plea allocution included a waiver of the right to appeal all aspects of the proceedings other than sentencing and constitutional issues, defendant filed a notice of appeal in each matter. The notices of appeal addressed defendant's convictions as well as his sentences. The appeals were never perfected.

Defendant essentially seeks two items of relief. Based upon defendant's pro se status, this Court has exercised its discretion to interpret the relief sought. The Court will address each prong of the motion and, in so doing, address the response of the People, as necessary.

This Court has interpreted the first prong of defendant's motion as seeking relief pursuant to Criminal Procedure Law § 440.10 (1) (e). It is the only provision of Criminal Procedure Law § 440.10 which could reasonably be inferred or deemed to have been invoked by defendant's motion papers.

Defendant's motion argues that the judgments of conviction should be vacated due to the defendant's own alleged incompetence and due to the Court's purported failure to order a competency hearing pursuant to Criminal Procedure Law § 730.30. These two arguments are without merit.

The right to challenge a conviction pursuant to Criminal [*3]Procedure Law article 440 is broad, but it is not without limits.

"[T]he court must deny a motion to vacate a judgment when:

.....

(c) Although sufficient facts appear on the record of the proceedings underlying thejudgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period" (Criminal Procedure Law § 440.10 [2] [c]).

In this matter, defendant waived or gave up his right to appeal his judgments of conviction although he preserved his right to appeal constitutional issues and his sentences. Clearly, the issue of defendant's competency "involve[s] a right of constitutional dimension going to the very heart of the process'" (People v Lopez, 6 NY3d 248, 255, quoting People v Hansen, 95 NY2d 227, 230). Concluding, as I must, that the competency issue survives, there appears to have been no justification for the failure of the defendant to perfect his appeals. Indeed, he offers none in his supporting affirmation. Although defendant failed to submit the transcript of the preliminary hearing on the homicide charge, a record was made and is, presumably, available. Indeed, the People, in their answer, refer to it and provide copies of two pages of it. It is clear that sufficient facts appear on the record to have permitted the review which an appeal would have provided.

Even if the Court were to conclude that the instant motion survived the unjustifiable failure to perfect his appeals, the result would be little different. The Court has elected to exercise its discretion and address the substance of the motion's allegations.

"A defendant is presumed competent to proceed and is not entitled as a matter of right to have his or her mental capacity determined by examination and hearing. Entitlement to a hearing depends upon the court's awareness of some basis for questioning the defendant's capacity.

. . .

Note that defendant's prior history of psychiatric illness or incompetency does not in itself call into question defendant's competence to stand trial'. People v. Tortorici, [*4]supra, 92 NY2d at 765; People v. Morgan,, 1995, 87 NY2d 878, 881, 638 N.Y.S.2d 942, 662 N.E.2d 260. There must be some factor brought to attention of, or observed by, the court during the proceeding that raises the question of defendant's

competence to proceed at that time."(Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, Criminal Procedure Law § 730.30, at 297.)

At the time this Court accepted defendant's guilty pleas, in both above-captioned matters, neither defense counsel nor the People requested that the defendant be evaluated pursuant to Criminal Procedure Law § 730.30, and the Court had nothing in front of it which would have prompted it to initiate an examination sua sponte. Nothing in the proceedings before this Court established, or suggested, doubt of defendant's competence to enter a plea of guilty or to stand trial.

In addition, as stated above, defendant's plea to murder in the second degree, and his separate and distinct plea to rape in the third degree, were each knowingly, intelligently, and voluntarily made. A review of both the plea and sentencing proceedings by this Court confirms and illustrates that both pleas were knowingly, intelligently, and voluntarily made (see, People v Eaddy, 200 AD2d 896, 897).

Defendant was able to answer all of the questions posed to him by the Court at the time his pleas were taken. The defendant stated, among other things, that his entering of the guilty pleas, pursuant to the plea proposal, was his own voluntary act, that he had not consumed alcohol or taken any illicit drugs or medication on the day of the plea, and that he had sufficient opportunity to consult with counsel. In addition, defense counsel advised the Court that the defendant's pleas were in no way contrary to his advice.

During the colloquy between the defendant and the Court, "[d]efendant's answers were in all respects appropriate, showing no indication of mental impairment requiring a competency hearing" (People v Dover, 227 AD2d 804, 805 [citation omitted]).

This Court also observed the defendant at sentencing. Defendant was able to participate appropriately, giving this Court no indication of any factor that would lead the Court to question his competence. Aided by the pre-sentence investigation report prepared by the Franklin County Probation Department, this Court had no concern with regard to defendant's competency to proceed and no basis upon which to become concerned. [*5]

In support of the first prong of this motion, defendant also suggests that a competency evaluation was ordered by the local criminal court, in conjunction with the preliminary hearing in town court, upon the murder in the second degree felony complaint. Defendant's motion papers do not raise a similar claim respecting the rape in the third degree charge.

The People's response to the instant motion controverts that a competency evaluation was ordered. The People's response includes the sworn affidavit of Hon. John F. Marsden, formerly town justice for the Town of Malone, who presided at the preliminary proceedings concerning this defendant, including the June 14, 2005, arraignment upon the murder in the second degree felony complaint and the June 24, 2005, preliminary hearing in the same court on the same charge.

The former justice contradicts and contravenes defendant's self-serving conclusion that there were indicia of incompetence at those early stages. In particular, Justice Marsden clearly states, in his affidavit sworn to on September 14, 2011, that, at arraignment, defendant "appeared to understand the charges"; responded affirmatively when advised of his rights and if he understood them; was able to provide his name, address, Social Security number and phone number; and did not request medical treatment when asked. With respect to these observations from the preliminary hearing, Justice Marsden indicated that defendant "appeared to understand what was occurring at the time" and that "[t]here was no indication that he [defendant] did not understand the nature of the proceedings, or what was occurring".

These observations of the justice first encountering the defendant are entitled to due deference and respect, as he was the arraigning magistrate and the trier of fact and law at the preliminary hearing.

Justice Marsden's sworn statements and recollections are corroborated by the court notes he provided along with the criminal arraignment sheets attached to the People's response to the instant motion. Moreover, the justice expressly confirms that he did not order a competency examination and concludes his statement by reiterating his determination that this defendant "fully understood what he was charged with and appeared very cognizant of what was happening."

Criminal Procedure Law § 440.30 (4) provides:

Upon considering the merits of the motion, the court may deny it without conducting a hearing if: . . . [*6]

(b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts . . . ; or

(c) An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof ; or

(d) An allegation of fact essential to support the motion (i) is contradicted by a court record or other official documents, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all other circumstances attending the case, there is no reasonable possibility that such allegation is true.

Each subdivision set forth immediately above is applicable to this motion. The motion papers do not substantiate the existence of any lack of competency for this defendant other than by his own self-serving and uncorroborated allegations. Defendant's claim that he raised competency issues and that the local criminal court ordered a competency evaluation are conclusively refuted by the September 14, 2011, affidavit of the presiding magistrate. The incompetence claim is made solely by the defendant and is unsupported by any other affidavit or evidence. Under the totality of the circumstances of these two separate indictments, there is no reasonable possibility that such allegation is true.

The Court has scoured the files for each proceeding and has not discovered any independent indication, in local court's divestitures, or otherwise, of any order for a Criminal Procedure Law article 730 examination or any indicia that such an order was signed or even existed as an unsigned potential order.

There are other points to ponder. Defendant's motion papers cite the preliminary hearing transcript and refer to former defense counsel's role and statements at the hearing. Yet no transcript is provided and no affidavit from former counsel is offered. Beyond that, no affidavit from the attorney who ultimately represented him is submitted. Further, defendant does not include in his papers any allegations regarding his mental state or condition, at the time of the proceedings resulting in his pleas, that would support his conclusion that he lacked capacity or from which the Court could have concluded, upon observation, objectively or subjectively, that it would be necessary or appropriate to order an article 730 examination.

The heinous nature of defendant's crimes provokes a certain [*7]recollection of the proceedings before this Court. A review of the files has refreshed the Court's memory further. There is a recollection of the defendant, at one time, in the courtroom in a wheelchair. But there was nothing about such an appearance, apparently a consequence of injuries resulting from defendant's flight and exposure, that suggested a mental problem. The review of the file revealed notes of a conference among the Court's court attorney and counsel at which extreme emotional disturbance was discussed. As well, a notice of intent to offer evidence of mental disease or defect and extreme emotional disturbance was filed early on in the proceedings and before defense counsel was changed. Such a discussion and such a notice, as to possible defenses, are vastly different from any potential article 730 capacity issue.

In his original supporting affirmation and in his reply, defendant acknowledges the presumption of competence. Specifically, at paragraph 6 of the original supporting affirmation, defendant concedes:

"While, It is established that a defendant is presumed competent, a court is under no obligation to order a competency examination absent reasonable cause to believe a defendant may be an incapacitated person, and the decision whether to order such an examination rest within the court's discretion'" (citations omitted).

On the second page of his reply, the defendant further concedes:

"Defendant agrees there is a presumption defendants are presumed to be competent and a Court is under no obligation to order a competency examination - absent reasonable cause to believe otherwise".

Town Justice Marsden and this Court both presided, pursuant to the statutory scheme for the disposition of felonies, over this case. Town Justice Marsden confirmed, by affidavit, that he did not order a competency evaluation. This Court did not order a competency evaluation either. There is nothing before this Court which would lead the Court to question or controvert Town Justice Marsden's observations and discretion. This Court will not reverse or revise its own assessment as to defendant's competence at the time of his arraignments, pleas, and sentencings. Defendant is aware of, and has not rebutted, the presumption of competence. There was no reasonable cause to believe that defendant was an incapacitated person in 2006. [*8]

Based on the motion papers submitted, and for the foregoing reasons, this prong of defendant's motion will be denied.

Turning to the second prong of the motion, the Court has again exercised its discretion and interpreted the relief sought. It appears that defendant seeks to vacate his sentence, pursuant to Criminal Procedure Law § 440.20 (1).

Criminal Procedure Law § 440.20 (1) clearly provides that a the defendant may make such a motion on the ground that a sentence imposed was "unauthorized, illegally imposed or otherwise invalid as a matter of law."

"The legal defects may include, in addition to an allegation that the sentence was not legally authorized for the offense of which the defendant was convicted: erroneous imposition of consecutive sentences; erroneous sentence as a second or third offender, e.g., challenge to the constitutional validity of the prior convictions or the decision to count them as predicates (see CPL §§ 400.15, 400.16, 400.19, 400.20, 400.21); improper revocation of probation or of conditional discharge; due process errors in the sentencing procedures; lack of counsel at sentencing; failure to give proper allocution (see CPL § 380.50); etc." (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, Criminal Procedure Law § 440.20, at 10).

The Court fully advised the defendant of the ramifications of the plea agreement, including sentencing options, prior to accepting the pleas. The consecutive, indeterminate sentences imposed were as authorized for the respective "A-1" felony and "E" felony convictions.

The Court finds that defendant has failed to set forth any sufficient facts in support of his legal claims which could serve as a basis for this Court granting the motion and setting aside the sentences or even directing a hearing on those issues (see, Criminal Procedure Law § 440.30 (4); People v Alexander, 255 AD2d 708, lv denied 93 NY2d 897; People v Walton, 214 AD2d 805, lv denied 86 NY2d 785). The mere reiteration of his competency contentions, just addressed in the context of his convictions, does not raise any cognizable Criminal Procedure Law § 440.20 (1) issue that requires determination.

The defendant's remaining contentions have been scrutinized and have been found to be without merit.

For the reasons set forth herein, it is

ORDERED that defendant's motion be, and it hereby is, denied, in its entirety and in each and every part; and it is further

ORDERED that defendant's motion to vacate the judgment of conviction against him, in [*9]each instance, be, and the same hereby is, denied in its entirety; and it is further

ORDERED that defendant's motion to vacate the sentences imposed against him, in each instance, be, and the same hereby is, denied in its entirety.

ENTER ________________________________

Franklin County Judge

Dated at Malone, New York, this 12th day of April, 2012.