| People v McCarthy |
| 2011 NY Slip Op 03413 [83 AD3d 1533] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronald E.McCarthy, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Spencer J. Ludington, A.J.), renderedFebruary 21, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedaggravated murder and arson in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted aggravated murder (Penal Law §§ 110.00, 125.26 [1]) and arson in thethird degree (§ 150.10 [1]). We reject defendant's contention that his waiver of the right toappeal is invalid. County Court "made clear that the waiver of the right to appeal was a conditionof [the] plea, not a consequence thereof, and the record reflects that defendant understood that thewaiver of the right to appeal was 'separate and distinct from those rights automatically forfeitedupon a plea of guilty' " (People vGraham, 77 AD3d 1439, 1439 [2010], lv denied 15 NY3d 920 [2010], quotingPeople v Lopez, 6 NY3d 248,256 [2006]; see People v McKeon,78 AD3d 1617 [2010]). Defendant's further contention that his plea was not knowing,intelligent and voluntary " 'because he did not recite the underlying facts of the crime[s] butsimply replied to County Court's questions with monosyllabic responses is actually a challenge tothe factual sufficiency of the plea allocution,' which is encompassed by the valid waiver of theright to appeal" (People v Simcoe,74 AD3d 1858, 1859 [2010], lv denied 15 NY3d 778 [2010], quoting People v Bailey, 49 AD3d 1258,1259 [2008], lv denied 10 NY3d 932 [2008]; see People v Grimes, 53 AD3d 1055, 1056 [2008], lvdenied 11 NY3d 789 [2008]). Defendant's challenge to the sufficiency of the factualallocution is unpreserved for our review inasmuch as he did not move to withdraw the plea or toset aside the judgment of conviction on that ground (see People v Lopez, 71 NY2d 662,665 [1988]). In any event, there is no merit to defendant's challenge because "there is norequirement that defendant recite the underlying facts of the crime to which he [or she] ispleading guilty" (Bailey, 49 AD3d at 1259).
The valid waiver by defendant of the right to appeal does not encompass his challenge to theamount of restitution ordered inasmuch as that amount was not included in the terms of the pleaagreement (see People v Straw, 70AD3d 1341 [2010], lv denied 14 NY3d 844 [2010]; cf. People v Butler, 81[*2]AD3d 1465 [2011]; People v Thomas, 77 AD3d 1325, 1326 [2010]). Defendant failedto preserve his challenge to the amount of restitution for our review, however, by failing to objectto that amount at the time of sentencing or requesting a hearing on that issue (see People v Jorge N.T., 70 AD3d1456, 1457 [2010], lv denied 14 NY3d 889 [2010]; People v Hannig, 68 AD3d 1779,1780 [2009], lv denied 14 NY3d 801 [2010]), and we decline to exercise our power toreview that challenge as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Finally, defendant contends that the imposition of restitution was illegal because the Divisionof New York State Police was not a "victim" within the meaning of the restitution statute (PenalLaw § 60.27). We agree with defendant that his contention concerning the allegedillegality of the restitution portion of the sentence is not precluded by his waiver of the right toappeal, nor is preservation required with respect to that contention (see People v Pump, 67 AD3d1041, 1042 [2009], lv denied 13 NY3d 941 [2010]; People v Long, 27 AD3d 302[2006], lv denied 6 NY3d 850 [2006]; People v Casiano, 8 AD3d 761, 762 [2004]). Nonetheless, weconclude that there is no merit to defendant's contention. Penal Law § 60.27 defines theterm victim in relevant part as "the victim of the offense" (§ 60.27 [4] [b]). The termoffense includes "the offense for which a defendant was convicted, as well as any other offensethat is part of the same criminal transaction or that is contained in any other accusatoryinstrument disposed of by any plea of guilty by the defendant to an offense" (§ 60.27 [4][a]). Here, defendant drove his vehicle head-on into a marked police vehicle operated by a policesergeant, causing significant damage to the police vehicle. Thus, "the restitution did notreimburse the police for the normal operating costs of law enforcement that are voluntarilyincurred . . . ; instead, it covered the cost of repairing a police [vehicle] that wasdamaged as a direct result of defendant's criminal conduct" (People v Barnett, 237 AD2d917, 918 [1997], lv denied 90 NY2d 855 [1997]; see People v Cruz, 81 NY2d996, 997-998 [1993]). Present—Smith, J.P., Peradotto, Carni, Sconiers and Green, JJ.