| People v Sawyer |
| 2008 NY Slip Op 07802 [55 AD3d 949] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jon J. Sawyer,Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Laurie L. Paro of counsel), for respondent.
Spain, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered November 21, 2006, convicting defendant upon his plea of guilty of the crimes of grandlarceny in the fourth degree and forgery in the second degree (two counts).
Defendant was charged in an August 2006 superior court information (hereinafter SCI) with grandlarceny in the fourth degree related to welfare fraud and two counts of forgery in the second degree forforging a signature on two checks drawn upon a closed account. He appeared in County Court, waivedindictment, and was in the process of entering a guilty plea and waiving his appeal rights when the courtvacated his plea due to uncertainty as to whether his conduct constituted forgery. A second SCI wasfiled in September 2006, charging three additional counts of forgery in the second degree. Defendantappeared in County Court, waived indictment, and entered a guilty plea to grand larceny in the fourthdegree and two counts of forgery in the second degree in satisfaction of both SCIs; he also signed awritten waiver of appeal which he reaffirmed during the plea colloquy. County Court thereaftersentenced defendant as a second felony offender to the agreed-upon consecutive prison terms of 2 to 4years on the larceny count and 3½ to 7 years on each of the forgery counts, all to be served atWillard Drug Treatment Center. At sentencing, the court ordered restitution in the amount of$10,527.70 covering approximately 48 different checks and the welfare fraud, which the court reducedto a civil judgment, later amended after entry of the judgment of conviction. Defendant now appeals.[*2]
Initially, contrary to defendant's claims, we find that his pleaand appeal waiver were knowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248, 256 [2006]; People vCallahan, 80 NY2d 273, 280 [1992]; People v Seaberg, 74 NY2d 1, 11 [1989]). Weare also unpersuaded by his contention that he was deprived of meaningful representation by defensecounsel's remarks to County Court at sentencing in which counsel reported that defendant wanted torevoke his plea. Indeed, counsel was not bound to independently pursue defendant's baseless pro semotion (see People v Mills, 45 AD3d892, 895-896 [2007], lv denied 9 NY3d 1036 [2008]; People v Caple, 279AD2d 635, 635 [2001], lv denied 96 NY2d 798 [2001]). Defendant was given fairopportunity to express the sole basis for his pro se request—his uncertainty that he would servehis sentences at Willard—which the court answered by reiterating that it had committed tosentence him to Willard and that he could vacate his plea if it were later determined that this was notpossible. Defense counsel did not argue in opposition to defendant's motion, become a witness againstdefendant or make any statements adverse or in contradiction to defendant on that motion (seePeople v Caple, 279 AD2d at 636; see also People v Mills, 45 AD3d at 896). Defendantvoluntarily withdrew his motion after being reassured by the court with respect to its Willard promise,and we discern no error or ineffectiveness of counsel.
We agree, however, that the record fails to reflect that defendant was adequately apprised thatrestitution would be imposed pursuant to the plea agreement and that defendant did not knowinglyagree to it,[FN1] requiring that his sentence be vacated and he be given an opportunity to withdraw his plea or to acceptrestitution as a component of his sentence (see People v Tehonica, 46 AD3d 942, 942-943 [2007]; People v Snyder, 23 AD3d 761, 762[2005]; People v Neu, 1 AD3d798, 798 [2003]). At the outset of the (second) plea, County Court merely stated that "restitutionwill be reduced to a civil judgment." While defendant subsequently indicated generally that heunderstood the plea terms and had no questions, restitution was not otherwise specifically mentioned,and neither defendant nor defense counsel agreed that it would be imposed at sentencing as part of thenegotiated agreement. Further, the record is silent as to whether defendant was everadvised—prior to sentence being imposed—of the amount (or scope) of restitution, or ifdefendant or defense counsel ever received a copy of the itemized list of restitution that appears in therecord.[FN2] Under these circumstances, if restitution is ordered, a hearing should be held regarding the appropriateamount (see People v Tehonica, 46 AD3d at 943; People v Snyder, 23 AD3d at762-763; People v Thomas, 6 AD3d754, 755 [2004]; see also CPL 400.30; Penal Law § 60.27), unless agreed to bydefendant.
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed; matter remitted to the County Court of St. LawrenceCounty for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: We do not find that the discussion ofrestitution during the first plea colloquy—during which the plea was vacated—rectifies thedeficiencies in the subsequent plea colloquy which is before us.
Footnote 2: While the presentence reportindicates that an order reducing restitution to a judgment was attached, the copy of the report in therecord has no attached order (or itemized list), and no victim impact statements are included with thereport.