| People v Mahon |
| 2017 NY Slip Op 01735 [148 AD3d 1303] |
| March 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Robert E.Mahon Jr., Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered April 2, 2015, convicting defendant upon his plea of guilty of the crime of burglary inthe third degree.
Defendant entered an Alford plea to burglary in the third degree in satisfaction of asuperior court information, waived his right to appeal and was placed on interim probation forone year. According to the plea agreement, if defendant was successful on interim probation, hewould be sentenced to five years of probation and ordered to pay restitution. Defendantsubsequently admitted to violating the interim probation. County Court sentenced defendant to aprison term of 2 to 6 years and ordered restitution in the amount of $360. Defendant appeals.
As an initial matter, we find that defendant's waiver of appeal was valid. The record reflectsthat County Court informed defendant of the separate and distinct nature of the waiver of theright to appeal. Defendant executed a written waiver of appeal, which explained that he had theright to "appeal to a higher court" and that he was relinquishing that right. In view of theforegoing, we conclude that defendant's combined oral and written waiver of appeal wasknowing, voluntary and intelligent (seePeople v Bryant, 28 NY3d 1094, 1096 [2016]; People v Toledo, 144 AD3d 1332, 1332 [2016]; People v Oddy, 144 AD3d 1322,1323 [2016]; People v Lester, 141AD3d 951, 952-953 [2016]).
To that end, defendant's valid waiver of appeal precludes his claim of ineffective assistanceof counsel, except insofar as the alleged ineffective assistance impacts the [*2]voluntariness of the plea (see People v Lloyd, 142 AD3d 1250, 1250 [2016], lvdenied 28 NY3d 1073 [2016]; People v Viele, 130 AD3d 1097, 1097 [2015]). Such claims as tothe voluntariness of the plea, however, are unpreserved in the absence of a postallocutionmotion[FN*] and the narrowexception to the preservation requirement is inapplicable (see People v Ortiz, 127 AD3d 1416, 1417 [2015], lv denied26 NY3d 1010 [2015]). Defendant's challenges to the sufficiency of the plea and the severity ofhis sentence are also foreclosed by his valid appeal waiver (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Woods, 141 AD3d 954,955 [2016], lv denied 28 NY3d 1076 [2016]; People v Goldman, 139 AD3d 1111, 1111-1112 [2016], lvdenied 28 NY3d 970 [2016]; Peoplev Long, 117 AD3d 1326, 1327 [2014], lv denied 24 NY3d 1003 [2014]).
Although defendant's contention regarding the amount of restitution imposed is notprecluded by the appeal waiver "because the plea agreement did not specify the amount ofrestitution to be awarded" (People vOrtolaza, 120 AD3d 843, 844 [2014], lv denied 25 NY3d 991 [2015]), the issueis nonetheless unpreserved for our review given defendant's failure to request a hearing or objectto the amount of restitution imposed at sentencing (see People v Horne, 97 NY2d 404,414 n 3 [2002]; People vHakkenberg, 142 AD3d 1251, 1252 [2016], lv denied 28 NY3d 1072 [2016]; People v Disotell, 123 AD3d 1230,1231 [2014], lv denied 25 NY3d 1162 [2015]).
McCarthy, J.P., Garry, Lynch and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant originally moved towithdraw his plea but subsequently withdrew that motion.