| People v Mosher |
| 2010 NY Slip Op 09025 [79 AD3d 1272] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Amy L. Mosher,Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered October 22, 2008, convicting defendant upon her plea of guilty of the crime of attemptedarson in the third degree.
After defendant started a fire in the domestic violence shelter where she was residing, she waivedindictment, pleaded guilty to a superior court information charging her with attempted arson in the thirddegree and waived her right to appeal. At sentencing, County Court imposed the agreed-upon sentenceof 3 to 6 years in prison and ordered restitution, upon defendant's agreement. Defendant appeals.
Defendant's challenge to the validity of her guilty plea is unpreserved for appellate review becauseshe failed to move to withdraw her plea or vacate the judgment of conviction (see People v Hull, 52 AD3d 962, 963[2008]). No exception to the preservation requirement applies here. Defendant's statements during theplea colloquy did not cast doubt upon her guilt or raise a potential defense, and County Court was notrequired to address a possible defense implied in one of her previous written statements to the police.
Defendant's challenge to the validity of her waiver of appeal, however, has merit. The [*2]record does not demonstrate that "defendant understood that the right toappeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]). County Court improperly bundled those rights, including in one question a waiver offundamental trial rights as well as the right to appeal. The written waiver of appeal also failed to explainthat the right to appeal was separate and distinct from other rights. Accordingly, as the court could notbe certain that defendant understood the nature of her appeal rights and waived them knowingly andintelligently, the waiver of appeal was invalid (see id.).
The sentence of imprisonment was not harsh or excessive. Defendant had multiple prior convictionsand endangered several people by starting a fire in an occupied residence. Additionally, the sentenceimposed was agreed upon as part of the plea bargain.
Due to inconsistences between what was agreed to at sentencing and the order directing thepayment of restitution, we must remit for County Court to address that issue. At sentencing, the courtnoted that restitution had been requested, but it had not been discussed during the plea colloquy. Thecourt stated that because restitution was not included as part of the plea bargain, defendant had anoption. She could either pay $320 in fees—as mentioned during the plea colloquy—to bededucted by the Department of Correctional Services during her incarceration, or she could agree topay only $50 in fees and $643.65 in restitution, with the restitution ordered to be paid in a lump sumwithin 10 years. Her attorney announced that defendant preferred "to go the restitution route." Thecourt signed a restitution order with the lump-sum payment section crossed out, instead listing under the"[o]ther" category that payment was to be made "[i]n full by October 22, 2018." The order alsoincluded a section stating that the Department of Correctional Services was authorized to deductrestitution from defendant's inmate account. The court's statements on the record and the writtenrestitution order are inconsistent. Under these circumstances, we remit the matter to County Court toensure that defendant receives the benefit of her decision to pay restitution. Defendant was presentedwith information concerning two options and made an informed choice to pay restitution, with a benefitto her in the form of a delay of her obligation to make payments for up to 10 years, rather thanimmediate deductions from her inmate account. As her decision was knowing and intelligent, defendantis not permitted to withdraw her consent to pay restitution; the remedy is only to clarify her restitutionobligations by resolving any discrepancy between what the court orally promised her and what thewritten order said, and to ensure that she is actually getting what she agreed to.
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is modified, onthe facts, by vacating the restitution order; matter remitted to the County Court of Saratoga County forfurther proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.