People v. Armlin , 43 A.D.2d 782 ( 1973 )

Appeal from a judgment of the County Court of Fulton County, rendered March 5, 1973, convicting defendant, on his plea of guilty, of rape in the first degree. Defendant, indicted for two counts of burglary in the first degree and for rape in the first, second and third degrees, pleaded guilty, during trial and while represented by an attorney, to rape in the first degree in full satisfaction of the indictment. Proof had been submitted that defendant entered a Johnstown, New York, home during the early morning of August 10, 1972 and, brandishing a knife and threatening its use, engaged in sexual intercourse with a 12-year-old child residing therein. Prior to trial and following two days of Huntley hearing testimony, the court concluded that defendant knowingly and intelligently waived his rights and that it was proven beyond a reasonable doubt that the challenged admissions and signed statements were made voluntarily and were therefore admissible. An order filed December 29, 1972 directed that the Superintendent of the Utica State Hospital cause an examination of defendant’s mental condition to be made and that he designate two qualified psychiatrists from said hospital staff for such purpose. An order filed January 12, 1973 directed that defendant be committed to said hospital for treatment, observation, examination and report as to his physical and mental condition. Although it appears that these decrees were never complied with, no explanation being given, he was taken to the Fulton County Mental Health Clinic and there examined by one psychiatrist, Dr. Rockmore (see CPL 730.10, 730.20), who found that defendant was fully competent to understand the nature of his activities and that clinically he was competent and not suffering from any mental disorder. Under normal circumstances, defendant, by not objecting and by not bringing the noncompliance with the orders to the court’s attention, did not preserve the issue for appeal {People v. Hicks, 287 N. Y. 165, 174; People v. Weis, 32 A D 2d 856, cert, den. 397 U. S. 1047; see CPL 470.05, subd. 2), and, by pleading guilty, waived his right to object to the failure to conform to the orders, a nonjurisdietional matter (cf. People v. Lynn, 28 N Y 2d 196, 201-202; People v. Sehiskey, 39 A D 2d 608), providing the plea was intelligent and voluntary (see Boykin V. Alabama, 395 U. S. 238, 242). In determining at this juncture whether defendant voluntarily, knowingly and intelligently waived his constitutional rights prior to executing the written statements, the appropriate test is a consideration of the totality of the circumstances {People v. Chaffee, 42. A D 2d 172). The Sheriff, who was present at the interrogation, testified that defendant had some sort of a mental problem and that in his opinion defendant needed some psychiatric help. There was no proof of expert qualifications on the part of said official nor of any irrational conduct by defendant at any time. He was not subjected to prolonged interrogation and there is no indication or claim that force or deception was employed. While an argument is made that one of the officers was a friend of the accused, there is no indication that this relationship influenced or coerced defendant’s decision to confess. No promises or threats were made. No evidence was introduced that defendant was incapable of functioning normally or of understanding and intelligently waiving his rights. Under all the circumstances, the People sustained their burden of proving that defendant knowingly and intelligently waived his rights and that his confessions were voluntarily made. It is contended that the trial court erroneously accepted the guilty plea without first holding a hearing to determine whether defendant was mentally competent. There is no statute requiring such a hearing in every instance where it is claimed that a defendant has a mental problem or a history of psychiatric treatment and the fact that a defendant had a history of mental disturbance does not in itself prove that he was insane at the time of plea or sentencing (People v. Bowndy, 10 N Y 2d 518, 521). There is no intimation that defendant was ever institutionalized or declared insane or even mentally ill at any time prior to his sentencing. Indeed, the examining psychiatrist’s report negated insanity. The trial court, after questioning defendant as to the basis for his plea, stated it was satisfied from defendant’s demeanor and the clarity and definiteness of his responses that he was “ voluntarily, willingly and intelligently, with full awareness of [his] rights and consequences • * * pleading guilty.” The record does not present a basis for holding that error was committed in failing to conduct such a hearing. Judgment affirmed. Staley, Jr., J. P., Cooke and Sweeney, JJ., concur; Kane, J., dissents and votes to reverse in the following memorandum.