| People v Jorge N.T. |
| 2010 NY Slip Op 01254 [70 AD3d 1456] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jorge N.T.,Appellant. |
—[*1] Edward M. Sharkey, District Attorney, Little Valley, for respondent.
Appeal from an adjudication of the Cattaraugus County Court (Larry M. Himelein, J.),rendered December 17, 2007. Defendant was adjudicated a youthful offender upon his plea ofguilty of arson in the third degree and burglary in the third degree.
It is hereby ordered that the adjudication so appealed from is unanimously modified on thelaw by directing that the sentences of imprisonment shall run concurrently with respect to eachother and as modified the adjudication is affirmed.
Memorandum: On appeal from a youthful offender adjudication based upon his plea ofguilty of arson in the third degree (Penal Law § 150.10 [1]) and burglary in the thirddegree (§ 140.20), defendant contends that his waiver of the right to appeal was invalid.We reject that contention. The record "establish[es] that the defendant understood that the rightto appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty"(People v Lopez, 6 NY3d 248,256 [2006]). The valid waiver by defendant of the right to appeal encompasses his challenge tothe factual sufficiency of the plea allocution (see People v Hinkson, 59 AD3d 934 [2009], lv denied 12NY3d 817 [2009]), as well as his challenge to County Court's suppression ruling (see Peoplev Kemp, 94 NY2d 831, 833 [1999];People v Gordon, 42 AD3d 964 [2007], lv denied 9 NY3d 876 [2007]).
Although the challenge by defendant to the amount of restitution ordered is not foreclosed byhis waiver of the right to appeal because the amount of restitution was not included in the termsof the plea agreement (see People v Talley, 300 AD2d 1038 [2002], lv denied100 NY2d 566 [2003]), defendant failed to preserve that challenge for our review inasmuchas he failed to object to the amount of restitution at sentencing or to request a hearing withrespect thereto (see People vHannig, 68 AD3d 1779 [2009];People v Melino, 52 AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]).Defendant further contends that he was denied effective assistance of counsel based on defensecounsel's failure to request a mental health examination to determine whether he was competentto proceed with his guilty plea. To the extent that defendant's contention survives the plea andwaiver of the right to appeal (see Peoplev Santos, 37 AD3d 1141 [2007], lv denied 8 NY3d 950 [2007]), that contentionis also unpreserved for our review because [*2]defendant failedto move to withdraw his plea or to vacate the judgment of conviction (see People v Tantao, 41 AD3d1274 [2007], lv denied 9 NY3d 882 [2007]). In any event, that contention lacksmerit. Although defendant had a history of mental health problems and treatment, "[t]here is noindication in the record that defendant was unable to understand the proceedings or that he wasmentally incompetent at the time he entered his guilty plea" (People v Williams, 35 AD3d 1273, 1275 [2006], lv denied8 NY3d 928 [2007]), and "[t]here can be no denial of effective assistance of . . .counsel arising from [defense] counsel's failure to 'make a motion or argument that has little orno chance of success' " (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]).
We agree with defendant, however, that the sentence imposed is illegal. The challenge bydefendant to the legality of the sentence survives his waiver of the right to appeal (see People v Christopher T., 48 AD3d1131 [2008]) and, as the People correctly concede, "having adjudicated defendant a youthfuloffender, the court 'was without authority to impose consecutive sentences in excess of fouryears' " (People v Cory T., 59AD3d 1063, 1064 [2009], quotingPeople v Ralph W.C., 21 AD3d 904, 905 [2005]; see Penal Law § 60.02[2]; § 70.00 [2] [e]). We therefore modify the adjudication accordingly.Present—Centra, J.P., Peradotto, Green and Pine, JJ.