| People v Small |
| 2011 NY Slip Op 02084 [82 AD3d 1451] |
| March 24, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NormanSmall, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George, (Emilee B. Davenport of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered June 24, 2009, convicting defendant upon his plea of guilty of the crime of burglary inthe first degree.
In satisfaction of a five-count indictment stemming from entering a woman's home andassaulting her, defendant pleaded guilty to one count of burglary in the first degree and waivedhis right to appeal. As agreed, defendant was sentenced as a second felony offender to a prisonterm of 10 years and postrelease supervision of five years. County Court further ordered thatdefendant pay restitution in the amount of $1,360. Defendant now appeals.
We affirm. As an initial matter, defendant challenges the validity of his appeal waiver.During the plea colloquy, County Court distinguished the right to appeal from those rightsautomatically given up upon a plea of guilty, after which defendant indicated that he was willingto waive his right to appeal. He then discussed the matter with counsel and executed a detailedwritten waiver in open court. Under these circumstances, we find that defendant knowingly,intelligently and voluntarily waived his right to appeal (see People v Galietta, 75 AD3d 753, 754 [2010]; People v Thomas, 71 AD3d 1231,1231-1232 [2010], lv denied 14 NY3d 893 [2010]).[*2]
Defendant also argues that his plea was not knowing,intelligent and voluntary because he did not know the specific amount of restitution to be orderedat the time he pleaded guilty. While this argument survives his appeal waiver, it is unpreservedfor our review given his failure to move to withdraw his guilty plea or vacate the judgment ofconviction (see People vNaumowicz, 76 AD3d 747, 748 [2010]; People v Swart, 20 AD3d 691, 692 [2005]). Moreover, the narrowexception to the preservation rule is not implicated here (see People v Naumowicz, 76AD3d at 748). To the extent that his related ineffective assistance of counsel argument surviveshis appeal waiver, it is likewise unpreserved (see People v Peterkin, 77 AD3d 1017, 1017-1018 [2010]; People v Phelan, 77 AD3d 987,987-988 [2010]).
Defendant further asserts that County Court was obliged to permit him an opportunity towithdraw his plea given its imposition of an order of restitution at sentencing. While thisargument is not encompassed by his appeal waiver, it is without merit, as he was well aware thatrestitution could be a part of his sentence when he pleaded guilty (see People v Scott, 74 AD3d 1582[2010]; People v McNulty, 70AD3d 1127, 1128 [2010]). Finally, his challenge to the sentence imposed as harsh andexcessive is precluded by his appeal waiver (see People v Stokes, 75 AD3d 662, 663 [2010]).
Spain, J.P., Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.