| People v Pump |
| 2009 NY Slip Op 07880 [67 AD3d 1041] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Stephen D.Pump, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered January 22, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree.
After defendant shot his girlfriend, he was charged by indictment with attempted murder inthe second degree, assault in the first degree and criminal possession of a weapon in the seconddegree. Although defendant repeatedly expressed his dissatisfaction with assigned counsel,County Court found no reason to relieve counsel. With counsel's advice, defendant pleadedguilty to criminal possession of a weapon in the second degree in satisfaction of not only theindictment, but two unrelated pending charges as well. As part of the plea bargain, defendantwaived his right to appeal and agreed to pay restitution. The court sentenced defendant to theagreed-upon term of eight years in prison, followed by three years of postrelease supervision,and ordered him to pay $19,884.85 as restitution. On defendant's appeal, we affirm.
Defendant validly waived his right to appeal. The record substantiates—throughCounty Court's admonitions and the written waiver of appeal—the knowing, intelligentand voluntary character of defendant's waiver (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Leonard, 63 AD3d 1278,1279 [2009]; People v Tabbott, 61AD3d 1183, 1184 [2009]). Based on the valid waiver, defendant has given up his right toraise most issues on appeal (see People v [*2]Hansen, 95NY2d 227, 230 [2000]; see also People v Muniz, 91 NY2d 570, 574 [1998]), includingany challenge to County Court's suppression ruling (see People v Martin, 16 AD3d 767, 767-768 [2005]) and denial ofhis request for substitution of counsel (see People v Williams, 6 AD3d 746, 747 [2004], lv denied3 NY3d 650 [2004]). These issues did not affect the voluntariness of his plea, and during the pleacolloquy defendant informed the court that he was satisfied with counsel's services (seeid.). As relevant here, the only issues that survive the valid waiver of appeal are those thatimplicate the knowing or voluntary nature of the plea itself and defendant's argument concerningrestitution (see People v Francabandera, 33 NY2d 429, 434 n 2 [1974]).
Defendant knowingly, intelligently and voluntarily entered his plea. Although this issuesurvives a waiver of the right to appeal, defendant failed to preserve the issue by moving towithdraw his plea or vacate the judgment on this ground, and the narrow exception to thepreservation rule is inapplicable here (see People v Dixon, 62 AD3d 1214, 1214 [2009]). In any event,under all of the circumstances, including County Court's colloquy with defendant informing himof the various rights he was giving up by pleading guilty, the plea was fully informed andvoluntary (see People v Newcomb,45 AD3d 890, 892 [2007]).
Defendant also contends that County Court erred in denying his request to proceed pro se.This argument is foreclosed by his valid waiver of appeal, except to the extent that it affected thevoluntary nature of his plea (see People v Shields, 205 AD2d 833, 834 [1994]). As areview of the record does not establish that the court's denial of defendant's motion to proceedpro se rendered his plea involuntary, such a contention must rely upon information outside therecord. Defendant failed to preserve this argument by providing such information through amotion to withdraw his plea or vacate his judgment of conviction (cf. People v Dixon, 62AD3d at 1214; People v Jacob, 129 AD2d 650, 651 [1987], lv denied 70 NY2d800 [1987]).
County Court did not err in fixing the amount of restitution. Defendant's waiver of the rightto appeal does not foreclose his argument that the restitution portion of the sentence was illegal(see People v Casiano, 8 AD3d761, 762 [2004]). While Penal Law § 60.27 (5) (a) limits restitution to no more than$15,000, Penal Law § 60.27 (5) (b) permits restitution to exceed $15,000 so long as theamount in excess is limited to certain categories of expenses, including reimbursement formedical expenses actually incurred by the victim. As the majority of the $19,884.85 ordered hereconstituted reimbursement for the victim's medical expenses, the court-imposed restitution is inaccordance with the law.
Peters, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.