| People v Dunn |
| 2018 NY Slip Op 02670 [160 AD3d 1202] |
| April 19, 2018 |
| Appellate Division, Third Department |
[*1](April 19, 2018)
| The People of the State of New York,Respondent, v Damon Dunn, Appellant. |
Donna Maria Lasher, Youngsville, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered July 23, 2013, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in fullsatisfaction of a nine-count indictment and waived the right to appeal. County Court sentencedhim, as a second felony offender, to six years in prison, to be followed by three years ofpostrelease supervision, and ordered restitution in the amount of $450. Defendant nowappeals.[FN*]
Contrary to defendant's contention, his waiver of the right to appeal was valid. County Courtdistinguished the right to appeal from the rights automatically forfeited by a guilty plea anddefendant affirmed his understanding thereof. Defendant also executed a written waiver, whichboth he and his counsel signed, that included the acknowledgment that he was waiving the rightto appeal after discussing the waiver with counsel. Accordingly, we conclude that defendant's[*2]appeal waiver was knowing, intelligent and voluntary (see People v Peterkin, 156 AD3d962, 963 [2017]; People vPlass, 150 AD3d 1558, 1559 [2017], lv denied 29 NY3d 1094 [2017]).
Defendant also claims that County Court improperly ordered him to pay $450 in restitution.As part of the plea agreement, the People requested and defendant agreed to pay $250 inrestitution, which the People represented as the amount of the funds used in a controlled buy thathad not already been recovered (see Penal Law § 60.27 [9]). At sentencing,however, the People requested restitution in the amount of $450, without offering any evidencein support of the increased amount, and County Court so ordered. On appeal, the People concedethat the restitution ordered does not conform with the plea agreement and that a modification iswarranted. Although defendant failed to preserve his challenge by requesting a hearing orobjecting to the amount ordered (seePeople v Nesbitt, 144 AD3d 1329, 1330 [2016]; People v Morehouse, 140 AD3d 1202, 1204 [2016], lvdenied 28 NY3d 934 [2016]), we deem it appropriate to exercise our interest of justicejurisdiction and modify the judgment, only insofar as it directs defendant to pay restitution in theamount of $450, and reduce the amount of restitution to $250 so as to conform with the pleaagreement.
Lynch, Devine, Clark and Mulvey, JJ., concur. Ordered that the judgment is modified, as amatter of discretion in the interest of justice, by reducing the amount of restitution to $250, and,as so modified, affirmed.
Footnote *:Although defendant's notice ofappeal sets forth the incorrect date of the judgment of conviction, we exercise our discretion tooverlook this inaccuracy and treat the notice of appeal as valid (see CPL 460.10 [6]).