| People v Galietta |
| 2010 NY Slip Op 06010 [75 AD3d 753] |
| July 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JasonGalietta, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J), rendered June 22, 2007, convicting defendant upon his plea of guilty of the crimesof attempted murder in the second degree (two counts), assault in the first degree (two counts)and reckless endangerment in the first degree (10 counts).
In full satisfaction of a 16-count indictment, defendant pleaded guilty to attempted murder inthe second degree (two counts), assault in the first degree (two counts) and recklessendangerment in the first degree (10 counts) and waived his right to appeal. County Court agreedto impose a sentence not to exceed 12 years in prison. Thereafter, defendant was sentenced to anaggregate term of 10 years in prison and was ordered to pay $200 in restitution. Defendantappealed and his assigned counsel filed an Anders brief and moved to be relieved ascounsel. This Court rejected the Anders brief, withheld decision and assigned newcounsel (People v Galietta, 64AD3d 995 [2009]).
Defendant now argues that all waivers of the right to appeal "should be barred" and that hiswaiver as executed in County Court should not preclude him from challenging his sentence asharsh and excessive. Waiving one's right to appeal as part of a plea agreement is not inherentlycoercive or against public policy (seePeople v Lopez, 6 NY3d 248, 255 [2006]; People v [*2]Seaberg, 74 NY2d 1, 8-10 [1989]). And, while defendantmakes no particular claim addressed to the integrity or adequacy of this waiver, our reviewestablishes that defendant was fully aware of all of the ramifications of giving up his right toappeal when he executed it (see Peoplev Motz, 52 AD3d 1029, 1031 [2008], lv denied 11 NY3d 791 [2008]). Inaddition, with counsel present, defendant executed a written waiver of his right to appeal in opencourt and, in that document, confirmed that, after conferring with counsel, he had decided towaive his right to appeal (see People vChaney, 70 AD3d 1251, 1252 [2010]).
While defendant, by waiving his right to appeal, cannot challenge his sentence as harsh andexcessive (see People v Thomas, 71AD3d 1231, 1233 [2010]; People vGentry, 68 AD3d 1353, 1355 [2009], lv denied 14 NY3d 800 [2010]; People v Dixon, 62 AD3d 1214,1215 [2009], lv denied 13 NY3d 743 [2009]), his sentence should not have containedany additional conditions not set forth in the plea agreement. In that regard, restitution was firstmentioned when County Court actually pronounced defendant's sentence and it was not part ofthe plea agreement (see People vTehonica, 46 AD3d 942, 943 [2007]). While defendant did not object at that time to thecourt's imposition of restitution as part of the sentence, that failure does not preclude him fromraising this issue on appeal (see Peoplev Gantt, 63 AD3d 1379, 1380 [2009]; People v McDowell, 56 AD3d 955, 956 [2008]).
If, at the time it pronounced sentence, County Court was of the view that restitution shouldbe included in the sentence, it was required to provide defendant with an opportunity towithdraw his plea prior to imposing it (see People v McDermott, 68 AD3d 1453, 1454 [2009]; Peoplev Gantt, 63 AD3d at 1380; People vArmstead, 52 AD3d 966, 967-968 [2008]; People v Pickens, 45 AD3d 1187, 1188 [2007], lv denied10 NY3d 769 [2008]). Therefore, defendant's sentence must be vacated and the matter remittedto County Court to impose the agreed-upon sentence or, in the alternative, to give defendant theoption of withdrawing his plea before imposing the enhanced sentence (see People vMcDermott, 68 AD3d at 1454; People v Armstead, 52 AD3d at 968; People vPickens, 45 AD3d at 1188).
Mercure, J.P., Peters, Spain and Malone Jr., JJ., concur. Ordered that the judgement ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofSchenectady County for further proceedings not inconsistent with this Court's decision; and, asso modified, affirmed.