| People v Doris |
| 2009 NY Slip Op 05653 [64 AD3d 813] |
| July 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jacob Doris,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Ulster County (McDonough,J.), rendered April 7, 2008, convicting defendant upon his plea of guilty of the crimes of burglaryin the second degree and burglary in the third degree.
Defendant waived indictment and consented to prosecution by two superior courtinformations which charged him with burglary in the second degree and burglary in the thirddegree. He pleaded guilty to those charges, signed a waiver of his right to appeal and wassentenced, pursuant to the negotiated plea agreement, as a second felony offender to concurrentprison terms of seven years for burglary in the second degree and 3 to 6 years for burglary in thethird degree followed by five years of postrelease supervision. At sentencing, the issue ofrestitution was raised for the first time and, following a discussion, County Court ordered thatdefendant pay restitution in the amount of $465. Defendant now appeals, asserting that since theplea agreement did not mention restitution, he should have been afforded the opportunity towithdraw his plea or accept the enhanced sentence.[FN*][*2]
We note, initially, that consideration of the post-plearestitution order is not precluded by defendant's waiver of appeal and, therefore, the issue isproperly before us (see People v Nichols, 276 AD2d 832, 832 [2000]). Nevertheless,inasmuch as a review of the record reveals that defendant willingly accepted the enhancedsentence, we affirm. Indeed, defense counsel initiated the discussion about restitution, stated thatdefendant understood restitution would become part of his sentence and expressly informedCounty Court that defendant was not requesting a hearing on the issue. Defendant, furthermore,personally articulated such understanding and, in his own prepared statement prior to sentencing,reiterated his commitment to pleading guilty. Consequently, defendant has no basis on which tonow complain (see People v Esquivel, 261 AD2d 649, 649 [1999]).
Rose, Kane, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant similarly challengedCounty Court's imposition of mandatory surcharges, a DNA fee and crime victim assistance fees,but rescinded such contentions following the Court of Appeals' recent holdings in People v Guerrero (12 NY3d 45,46-50 [2009]) and People v Hoti(12 NY3d 742, 743 [2009]).