| People v Empey |
| 2010 NY Slip Op 04471 [73 AD3d 1387] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John R.Empey, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered February 9, 2009, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the third degree.
Defendant pleaded guilty to attempted burglary in the third degree, waived his right toappeal and was sentenced as a second felony offender to a prison term of 1½ to 3 years.County Court also ordered defendant to pay restitution in the amount of $604.15. Defendant nowappeals contending, among other things, that his plea was involuntary and he was entitled to arestitution hearing.
Preliminarily, we reject defendant's claim that his appeal waiver was invalid. County Courtexplained the nature of the right that defendant was waiving, and defendant affirmed hisunderstanding of that right, indicated that he had been given sufficient time to confer withcounsel and executed a detailed written waiver of the right to appeal. Under these circumstances,we are satisfied that defendant's waiver of the right to appeal was knowing, intelligent andvoluntary (see People v Thomas, 71AD3d 1231, 1231-1232 [2010]; People v Grant, 60 AD3d 1202, 1203 [2009]).[*2]
To the extent that defendant challenges the factualsufficiency of his plea, review of this issue is precluded by his valid waiver of the right to appeal(see People v Vaughns, 70 AD3d1123, 1124 [2010]; People vNesbitt, 23 AD3d 836, 837 [2005], lv denied 6 NY3d 816 [2006]) and, further,is unpreserved due to defendant's failure to move to withdraw his plea or vacate the judgment ofconviction (see People v Bethel, 69AD3d 1126, 1127 [2010]; People vHarris, 51 AD3d 1335, 1336 [2008], lv denied 11 NY3d 789 [2008]). Althoughdefendant's claim that his plea was involuntary survives his waiver of appeal, this issue similarlyis unpreserved for our review in light of defendant's failure to move to withdraw his plea orvacate the judgment of conviction (seePeople v Scitz, 67 AD3d 1251, 1251 [2009]; People v Pump, 67 AD3d 1041, 1041-1042 [2009], lvdenied 13 NY3d 941 [2010]). Further, the narrow exception to the preservation requirementwas not triggered here, inasmuch as defendant did not make any statements during the course ofthe allocution that negated an essential element of the crime or otherwise cast doubt upon hisguilt (see People v Grant, 60 AD3d at 1203; People v Jeske, 55 AD3d 1057, 1058 [2008], lv denied 11NY3d 898 [2008]). Contrary to defendant's assertion, the failure to specify the precise crime heintended to commit upon entering the residence was not fatal (see People v Grant, 60AD3d at 1203; People v Evans, 27AD3d 905, 907 [2006], lv denied 6 NY3d 847 [2006]).
As to the issue of restitution, inasmuch as the plea agreement did not specify the amount ofrestitution to be awarded, defendant's challenge to the restitution order is not precluded by hiswaiver of the right to appeal (see People v Thomas, 71 AD3d at 1232). However,defendant's failure to request a hearing or otherwise contest the amount of restitution ordered atsentencing renders his present claim—that the sum awarded is unsupported by therecord—unpreserved for our review, as defendant concedes (see id.). Further,reversal in the interest of justice is unwarranted because the invoices and documentation attachedto the victim impact statement are sufficient to support the amount of restitution awarded (seeid.). Defendant's remaining contentions, including his assertion that County Courtimproperly delegated its power to impose restitution to the Probation Department, have beenexamined and found to be lacking in merit.
Cardona, P.J., Peters, Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.