| People v Gilmour |
| 2009 NY Slip Op 02690 [61 AD3d 1122] |
| April 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jason M.Gilmour, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Susan L. Valle, New York Prosecutors TrainingInstitute, Albany, of counsel), for respondent.
Mercure, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 11, 2008, convicting defendant upon his plea of guilty of thecrime of attempted arson in the third degree.
In September 2005, defendant was charged in an indictment with arson in the third degreeand burglary in the third degree in connection with a fire that damaged a camp owned by RobertGilmour and Katherine Gilmour. Defendant, who was incarcerated in Pennsylvania at the time ofthe indictment, was extradited to New York pursuant to the Interstate Agreement on DetainersAct. Defendant ultimately pleaded guilty to attempted arson in the third degree, waiving his rightto appeal. In accordance with the terms of the plea agreement, he was sentenced as a secondfelony offender to 2 to 4 years in prison, and ordered to pay restitution in the amount of $40,260.Defendant appeals, and we now affirm.
Initially, we reject defendant's argument that his waiver of his right to appeal is invalidbecause he was not given an adequate explanation of the consequences of the waiver during theplea colloquy. County Court's explanation, coupled with defendant's detailed writtenwaiver—which he executed in open court—adequately described the scope of theappellate rights waived and acknowledged that defendant was intentionally waiving those rightsafter having been given [*2]sufficient time to discuss theconsequences of the waiver with counsel. Under these circumstances, the waiver of the right toappeal is valid (see People vRamos, 7 NY3d 737, 738 [2006]; People v Getter, 52 AD3d 1117, 1118 [2008]; People v Lewis, 48 AD3d 880,881 [2008]; People v Ramirez, 42AD3d 671, 671-672 [2007]).
Defendant further asserts that his plea was involuntary because, while present in New Yorkpursuant to the detainer, he was at some point brought before Family Court in connection withan unrelated proceeding. Although defendant's challenge to the voluntariness of the plea surviveshis waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989];People v Lewis, 48 AD3d at 881), it is unpreserved for our review, and the exception tothe preservation requirement is inapplicable here (see People v Nunez, 56 AD3d 897, 898 [2008], lv denied11 NY3d 928 [2009]; People vHull, 52 AD3d 962, 963 [2008]; People v Kilgore, 45 AD3d 886, 887-888 [2007], lv denied10 NY3d 767 [2008]). Moreover, reversal in the interest of justice is unwarranted inasmuch asthe argument patently lacks merit. Insofar as defendant challenges the sufficiency of the pleaallocution, his arguments are barred by his valid waiver of the right to appeal (see People v Hyson, 56 AD3d890, 891 [2008]; People vHarris, 51 AD3d 1335, 1336 [2008], lv denied 11 NY3d 789 [2008]; People v Bethea, 19 AD3d 813,814 [2005]).
With respect to defendant's challenges to the amount of restitution imposed and CountyCourt's determination of that amount without conducting a hearing, the record reveals that theterms of the plea agreement included restitution in the approximate amount of $40,000, with theexact amount to be determined after the victims were interviewed. Defendant did not request ahearing and, at sentencing, he consented to the specific amount of restitution imposed, $40,260.Under these circumstances, defendant's challenges are both barred by his waiver of the right toappeal and unpreserved for our review (see People v Giovanni, 53 AD3d 778, 778-779 [2008], lvdenied 11 NY3d 832 [2008]; People v Snyder, 38 AD3d 1068, 1069 [2007]; People v Sartori, 8 AD3d 748,749 [2004]; cf. People v McLean,59 AD3d 859, 860-861 [2009]).
Finally, although defendant's assertion that he received ineffective assistance of counselsurvives his waiver of the right to appeal because it implicates the voluntariness of his plea (see e.g. People v Jones, 30 AD3d633, 633 [2006], lv denied 7 NY3d 849 [2006]), we reject it as meritless.
Peters, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.