| People v Thomas |
| 2010 NY Slip Op 01852 [71 AD3d 1231] |
| March 11, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Robert E. Thomas, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), entered October 6, 2008, convicting defendant upon his plea of guilty of the crime ofburglary in the second degree.
In satisfaction of a six-count indictment and other pending charges, defendant pleaded guiltyto one count of burglary in the second degree. As part of the plea agreement, defendant waivedhis right to appeal and agreed to pay restitution. County Court sentenced defendant to theagreed-upon term of nine years in prison, followed by five years of postrelease supervision, andordered him to pay restitution in the amount of $4,556.01. He now appeals.
We reject defendant's assertion that he did not knowingly, voluntarily and intelligently waivehis right to appeal. A review of the plea minutes reveals that County Court explained todefendant that he was waiving his right to appeal and described the nature of that right "withoutlumping [it] into the panoply of trial rights automatically forfeited upon pleading guilty" (People v Lopez, 6 NY3d 248, 257[2006]; see People v Getter, 52AD3d 1117, 1118 [2008]; People vRomano, 45 AD3d 910, 914 [2007], lv denied 10 NY3d 770 [2008]). Defendantalso executed a written appeal waiver in open court, which "adequately described the scope ofthe appellate rights waived and acknowledged that defendant was [knowingly and] intentionallywaiving those rights after having been given sufficient time to discuss the consequences of thewaiver with [*2]counsel" (People v Gilmour, 61 AD3d 1122, 1123 [2009], lv denied12 NY3d 925 [2009]). Under these circumstances, we find the appeal waiver to be valid (see People v Ramos, 7 NY3d 737,738 [2006]; People v Gilmour, 61 AD3d at 1123; People v Fludd, 33 AD3d 1124, 1125 [2006], lv denied 9NY3d 843 [2007]).
Defendant's challenge to the factual sufficiency of the plea allocution is foreclosed by hisvalid appeal waiver and is also unpreserved due to his failure to move to withdraw his plea orvacate the judgment of conviction (seePeople v Harris, 51 AD3d 1335, 1336 [2008], lv denied 11 NY3d 789 [2008];People v Sinclair, 48 AD3d974, 974 [2008]). His challenge to the voluntariness of his plea, although not encompassedby his waiver of the right to appeal, is not preserved for our review since he failed to move towithdraw his plea or vacate the judgment of conviction (see People v Brennan, 62 AD3d 1167, 1168 [2009], lvdenied 13 NY3d 794 [2009]; People v Missimer, 32 AD3d 1114, 1114 [2006], lv denied7 NY3d 927 [2006]). Furthermore, the exception to the preservation rule is inapplicable hereinasmuch as defendant did not make any statements during the plea allocution that wereinconsistent with his guilt or otherwise called into question the voluntariness of his plea (seePeople v Lopez, 71 NY2d 662, 666 [1988]; People v Jeske, 55 AD3d 1057, 1058 [2008], lv denied 11NY3d 898 [2008]). In any event, the record discloses that defendant's plea was voluntary,knowing and intelligent.
Defendant next contends that County Court erred in failing to conduct a restitution hearing.Since the plea agreement did not include the amount of restitution to be awarded, defendant'swaiver of the right to appeal does not preclude a challenge to the restitution order (see People v Travis, 64 AD3d808, 808 [2009]; People vWilson, 59 AD3d 807, 808 [2009]). However, to the extent that defendant argues thatthe amount of restitution ordered lacks sufficient support in the record, his failure to request ahearing or otherwise challenge the amount of restitution during the sentencing proceedingrenders this claim unpreserved for our review (see People v Horne, 97 NY2d 404, 414 n3 [2002]; People v Melino, 52AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]; People v Williams, 28 AD3d1005, 1011 [2006], lv denied 7 NY3d 819 [2006]). In any event, the medical billsand insurance documentation attached to the victim impact statement adequately support theamount of restitution ordered, thus obviating the need for a hearing (see People v Kim,91 NY2d 407, 411 [1998]; People vGolgoski, 40 AD3d 1138, 1138 [2007]; People v Drew, 16 AD3d 840, 841 [2005]). In addition,notwithstanding defendant's assertion to the contrary, County Court did not improperly delegateits power to impose restitution to the Probation Department (see People v White, 66 AD3d 1130, 1131 [2009]; comparePeople v Fuller, 57 NY2d 152, 158-159 [1982]).
Finally, in light of defendant's valid appeal waiver, he is precluded from arguing that thesentence imposed was harsh and excessive (see People v Scitz, 67 AD3d 1251, 1252 [2009]; People vBrennan, 62 AD3d at 1169).
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.