| People v Strong |
| 2015 NY Slip Op 00405 [124 AD3d 992] |
| January 15, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Strong, Appellant. |
Jane M. Bloom, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (McGuire,J.), rendered December 5, 2012, convicting defendant upon his plea of guilty of the crimeof burglary in the second degree (seven counts).
Defendant pleaded guilty to burglary in the second degree (seven counts) and waivedhis right to appeal. County Court thereafter sentenced him to an aggregate prison term ofeight years, to be followed by five years of postrelease supervision. County Court furtherordered that defendant pay restitution in the amount of $6,939.09. Defendant nowappeals.
Initially, defendant's challenge to the factual sufficiency of his plea is precluded bothby his valid appeal waiver and his failure to make an appropriate postallocution motion(see People v Mydosh, 117AD3d 1195, 1196 [2014], lv denied 24 NY3d 963 [2014]; People v Durham, 110 AD3d1145, 1145 [2013]).[FN1] Contrary to defendant's contention, wefind that his statements during the plea allocution did not [*2]cast doubt upon his guilt or negate an essential element ofthe crimes as to trigger the narrow exception to the preservation rule (see People v MacDonald, 113AD3d 968 [2014]; People vHarrison, 66 AD3d 1057, 1057-1058 [2009]).
Inasmuch, however, as the record before us does not demonstrate that the payment ofrestitution was part of defendant's plea bargain, County Court should not have imposedthe enhanced sentence without first giving defendant an opportunity to withdraw his plea(see People v Culcleasure,75 AD3d 832, 832 [2010]; People v Branch-El, 12 AD3d 785, 786 [2004], lvdenied 4 NY3d 761 [2005]).[FN2] Accordingly, the sentence must bevacated and the matter remitted to County Court for that purpose or, alternatively, theimposition of the promised sentence (see People v Culcleasure, 75 AD3d at 833;People v Pickens, 45 AD3d1187, 1188 [2007], lv denied 10 NY3d 769 [2008]). Moreover, the Peopleconcede, and we agree, that County Court failed to make a youthful offenderdetermination upon sentencing (see People v Rudolph, 21 NY3d 497, 499-503 [2013]; People v Calkins, 119 AD3d975, 975-976 [2014]). Accordingly, upon remittal, County Court must also addressthis issue. Finally, defendant's challenge to the length of his sentence as harsh andexcessive is precluded by his waiver of the right to appeal (see People v Fisher, 119 AD3d1289 [2014], lv denied 24 NY3d 1043 [2014]; People v Cabezas,307 AD2d 594, 595 [2003], lv denied 100 NY2d 618 [2003]).
Lahtinen, J.P., McCarthy, Rose and Lynch, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the CountyCourt of Sullivan County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1:Although defendantdoes not challenge the validity of his appeal waiver, our review of the record confirmsthat his oral and written waiver of the right to appeal his conviction and sentence wasknowing, intelligent and voluntary (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]).
Footnote 2:We note that neitherdefendant's appeal waiver nor his failure to object to the imposition of restitution atsentencing precludes our review of this issue (see People v Culcleasure, 75 AD3dat 832).