| People v Boone |
| 2012 NY Slip Op 08824 [101 AD3d 1358] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin Boone,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Schenectady County (Drago,J.), rendered September 1, 2010, convicting defendant upon his plea of guilty of the crime ofassault in the first degree.
On July 22, 2009 in the City of Schenectady, Schenectady County, defendant ignited lighterfluid that he had sprayed on the victim, causing her to be severely burned. He was subsequentlycharged by indictment with attempted murder in the second degree and two counts of assault inthe first degree. As pretrial hearings were about to begin, defendant pleaded guilty to one countof assault in the first degree in full satisfaction of the indictment and, in open court, both orallyand in writing, waived his right to appeal. In accordance with the plea agreement, County Courtsentenced defendant, as a second felony offender, to 15 years in prison to be followed by fiveyears of postrelease supervision, and ordered him to pay $26,000 in restitution. Defendant nowappeals.
We affirm. Initially, the record establishes that defendant's decision to waive his appellaterights was knowing, intelligent and voluntary (see People v Dame, 100 AD3d 1032, 1033 [2012]). Defendant'schallenge to the amount of restitution set by County Court is not barred by the appeal waiverbecause the plea agreement did not specify the amount of restitution to be imposed (see People v Smith, 100 AD3d1102, 1102[*2] [2012]; People v Vasavada, 93 AD3d 893, 894 [2012], lv denied 19NY3d 978 [2012]; People v Diallo,88 AD3d 1152, 1153 [2011], lv denied 18 NY3d 993 [2012]). However, he has notpreserved his right to challenge the amount of restitution because he withdrew his request for ahearing and agreed to pay $26,000 in restitution prior to sentence being imposed (see People v White, 84 AD3d1641, 1642 [2011], lv denied 18 NY3d 887 [2012]; compare People v Stevens, 80 AD3d791, 792 [2011], lv denied 16 NY3d 900 [2011]). Also, County Court was notrequired to consider defendant's ability to pay when it ordered restitution, as a significantcomponent of his sentence was a period of incarceration (see People v Merchant, 79 AD3d 1526, 1527 [2010]). Further,defendant's valid waiver of the right to appeal both his conviction and sentence (cf. People v Maracle, 19 NY3d925 [2012]) precludes any claim that we should exercise our interest of justice jurisdictionand reduce the sentence (see People vLopez, 97 AD3d 853, 853-854 [2012], lv denied 19 NY3d 1027 [2012]; People v White, 96 AD3d 1299,1300 [2012], lv denied 19 NY3d 1029 [2012]).
While defendant's claim that he was denied the effective assistance of counsel survives hiswaiver of appeal to the extent that it impacts upon the voluntariness of his plea (see People v Jerome, 98 AD3d1188, 1189 [2012]), the record does not indicate that defendant made an appropriate motionto withdraw his plea and, therefore, it has not been preserved for our review (see People v Benson, 100 AD3d1108, 1109 [2012]; People vDeJesus, 96 AD3d 1295, 1295 [2012]). In any event, his claim focuses on the fact that alawyer who initially represented him may have previously represented the victim and, therefore, aconflict of interest existed depriving defendant of effective representation. However, whendefendant entered his guilty plea, he was represented by different counsel who had noprofessional relationship with the victim, and any conflict that may have existed at one time didnot compromise the integrity of his guilty plea. Also, defendant's claim that County Court erredby failing to provide him with funds to retain a psychiatric expert has been waived, sincedefendant agreed to enter the guilty plea prior to a ruling being made on this application. Moreimportantly, defendant not only waived the right to assert a psychiatric defense,[FN*]but his lucid and appropriate responses to the court's questions during the plea colloquy belie anysuggestion that his guilty plea was not knowingly and voluntarily entered (see People v Budwick, 82 AD3d1447, 1448 [2011], lv denied 17 NY3d 857 [2011]; People v Woodard, 17 AD3d 929,930 [2005], lv denied 5 NY3d 811 [2005]).
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant also waived anintoxication defense.