| People v Murphy |
| 2010 NY Slip Op 02272 [71 AD3d 1466] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas W.Murphy, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered March 9, 2009. The judgment convicted defendant, upon his plea of guilty, of grandlarceny in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of grandlarceny in the second degree (Penal Law § 155.40 [1]), defendant contends that his waiverof the right to appeal was invalid. We reject that contention. The record "establish[es] that thedefendant understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]). Although thecontention of defendant that Supreme Court erred in denying his motion to withdraw the plea onthe ground that it was coerced survives his valid waiver of the right to appeal (see People v Wright, 66 AD3d1334 [2009], lv denied 13 NY3d 912 [2009]), we conclude that the court did notabuse its discretion in denying defendant's motion (see generally People v Alexander, 97NY2d 482, 485 [2002]). The contention of defendant in support of his motion that the plea wascoerced because the court conditioned its sentencing commitment on his payment of restitutionis belied by his statements during the plea colloquy and four subsequent court appearances,wherein he reaffirmed that he had agreed to pay restitution in the amount of $40,000 inaccordance with the terms of the plea agreement (see People v Forshey, 294 AD2d 868[2002], lv denied 98 NY2d 675 [2002]). During the four subsequent court appearances,defendant requested additional time in which to make restitution payments in whole or in partand represented to the court that he had the means to do so, and the court granted defendant'srequests. The record establishes that, before sentencing defendant to the maximum term ofincarceration, the court conducted an appropriate inquiry into the wilfulness of defendant'sfailure to pay the restitution and properly concluded that "in the first instance, the defendantagreed to pay the restitution in order to obtain the benefits of a favorable plea, but knew at thetime that he . . . would very likely be unable to satisfy the obligation" (People v Hassman, 70 AD3d 716,718 [2010]). Finally, the waiver by defendant of the right to appeal encompasses his contentionthat the sentence is unduly harsh and severe (see Lopez, 6 NY3d at 256).Present—Smith, J.P., Fahey, Carni, Sconiers and Pine, JJ.