| People v Stebbins |
| 2019 NY Slip Op 03104 [171 AD3d 1395] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Karlo Stebbins, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered November 24, 2015, convicting defendant upon his plea of guilty of the crimes ofrobbery in the second degree and burglary in the third degree.
In July 2015, defendant waived indictment and pleaded guilty to two superior courtinformations charging him with robbery in the second degree and burglary in the third degree andwaived his right to appeal, both orally and in writing. Consistent with the terms of the pleaagreement, defendant was sentenced to seven years for his robbery conviction and to a lesserconcurrent sentence on his burglary conviction and was ordered to pay $133.75 in restitution and$375 in a mandatory surcharge and fees. Defendant appeals.[FN*]
We affirm. Contrary to defendant's contention, the plea colloquy demonstrates that heknowingly, voluntarily and intelligently waived his right to appeal. The record reflects that, at theoutset of the plea proceeding, County Court advised defendant that the waiver of the right toappeal was a condition of the plea agreement, and defendant acknowledged his understanding ofthe plea agreement and its terms (seePeople v Cherry, 166 AD3d 1220, 1221 [2018]; People v Charles, 163 AD3d 1362, 1362 [2018], lv denied32 NY3d 1063 [2018]; People vGilbert, 145 AD3d 1196, 1196 [2016], lv denied 28 NY3d 1184 [2017]). CountyCourt then advised defendant that his right to appeal was separate and distinct from thetrial-related rights automatically forfeited by his guilty plea, and defendant confirmed that heunderstood the nature of the waiver and that he was voluntarily waiving his right to appeal (see People v Lopez, 6 NY3d 248,256 [2006]; People v Rogers, 162AD3d 1410, 1410 [2018]; People vTucker, 161 AD3d 1481, 1482 [2018], lv denied 31 NY3d 1153 [2018]; People v Stein, 161 AD3d 1389,1390 [2018]). Further, defendant reviewed with counsel and executed a written waiver of appealin open court that adequately described the nature and scope of the appellate rights being waivedand acknowledged, among other things, that he was waiving his right to appeal in considerationof the plea agreement (see People vWatkins, 166 AD3d 1239, 1240 [2018], lv denied 33 NY3d 955 [2019]; People v Stein, 161 AD3d at 1390; People v Zeller, 153 AD3d 1049,1050 [2017]). Accordingly, we find that defendant's combined oral and written waiver of appealwas knowing, intelligent and voluntary (see People v Cherry, 166 AD3d at 1221; People v Turner, 158 AD3d 892,892 [2018]). Given that defendant's ineffective assistance of counsel claim relates to theagreed-upon sentence and does not implicate the voluntariness of his plea, the claim is precludedby the valid waiver of appeal (seePeople v Bouck, 153 AD3d 1522, 1523-1524 [2017], lv denied 30 NY3d 1017[2017]; People v White, 145 AD3d1324, 1325 [2016]; People vDaniels, 16 AD3d 780, 780-781 [2005]; People v Howard, 1 AD3d 718, 719 [2003]).
Defendant's contention that his plea was not knowing, intelligent and voluntary survives hisappeal waiver (see People v Bond,146 AD3d 1155, 1156 [2017], lv denied 29 NY3d 1076 [2017]; People v Giammichele, 144 AD3d1320, 1320 [2016], lv denied 28 NY3d 1184 [2017]), but it is unpreserved for ourreview as there is no indication in the record that defendant made an appropriate postallocutionmotion despite having ample opportunity to do so prior to sentencing (see People v Conceicao, 26 NY3d375, 381-382 [2015]; People vDickerson, 168 AD3d 1194, 1194-1195 [2019]; People v Duvall, 157 AD3d 1060, 1060-1061 [2018], lvdenied 31 NY3d 1081 [2018]). Further, defendant did not make any statements during theplea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question thevoluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v Pastor, 28 NY3d1089, 1090 [2016]; People vQuell, 166 AD3d 1388, 1389 [2018], lv denied 32 NY3d 1208 [2019]; People v Horton, 166 AD3d 1226,1227 [2018]; People v Cherry, 166 AD3d at 1222).
As for defendant's claim that County Court was without authority pursuant to Penal Law§ 60.35 (6) to impose both restitution and the mandatory surcharge/crime victimassistance fee, "defendant failed to object to the surcharge at the time it was imposed or move forresentencing pursuant to CPL 420.10 (5); as such, this issue is not preserved for our review" (People v Salmans, 49 AD3d 961,962 [2008]; see People v Dunn, 254 AD2d 511, 512 [1998], lv denied 92 NY2d1031 [1998], cert denied 527 US 1024 [1999]; People v Burt, 142 AD2d 794, 794[1988]). In any event, were we to address this claim, we would find it to be without meritbecause defendant had not yet made restitution (see Penal Law § 60.35 [6];People v Quinones, 95 NY2d 349, 352 [2000]; People v Ortolaza, 120 AD3d 843, 844 [2014], lv denied 25NY3d 991 [2015]; People v Morse,111 AD3d 1161, 1162 [2013], lv denied 23 NY3d 1040 [2014]; People v Leone, 105 AD3d 1249,1250 [2013], lv denied 21 NY3d 1017 [2013]).
Garry, P.J., Mulvey, Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant does not challengethat portion of the judgment convicting him of burglary in the third degree.