| People v White |
| 2011 NY Slip Op 04315 [84 AD3d 1641] |
| May 26, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Donald E.White, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered December 21, 2009, convicting defendant upon his plea of guilty of thecrime of scheme to defraud in the first degree.
In satisfaction of a single-count indictment, defendant pleaded guilty to scheme to defraud inthe first degree, waived his right to appeal, was sentenced as a second felony offender to theagreed-upon prison term of 1½ to 3 years and was ordered to pay restitution in the amountof $14,440.50. Defendant now appeals.
We affirm. The waiver of appeal was not rendered invalid as a result of County Court'sfailure to expressly recite, as set forth in the written waiver of appeal executed by defendant inopen court, that it would only accept a plea if defendant waived his right to appeal. A review ofthe plea colloquy reflects that defendant was aware from the outset that a waiver of the right toappeal was part of the plea agreement. Further, County Court's ensuing explanation, coupled withdefendant's execution of the detailed written waiver in open court, adequately apprised defendantof the appellate rights he was forfeiting. Finally, defendant's affirmative responses to CountyCourt's inquiries confirmed that he understood the nature and ramifications of the waiver and hadbeen given sufficient time to confer with counsel. Under these circumstances, we find [*2]defendant's waiver to be knowing, intelligent and voluntary (see People v Dishaw, 81 AD3d1035, 1036 [2011]; People vPhelan, 77 AD3d 987, 987 [2010], lv denied 16 NY3d 830 [2011]; People v Gilmour, 61 AD3d 1122,1123 [2009], lv denied 12 NY3d 925 [2009]).
Defendant's challenge to the factual sufficiency of his plea is foreclosed by his valid waiverof the right to appeal and, further, is unpreserved for our review due to his failure to move towithdraw the plea or vacate the judgment of conviction (see People v Caldwell, 80 AD3d 998, 998 [2011]; People v Empey, 73 AD3d 1387,1388 [2010], lv denied 15 NY3d 804 [2010]; People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied14 NY3d 893 [2010]). In any event, defendant "was not required to recite the elements of hiscrime or engage in a factual exposition, as his unequivocal affirmative responses to CountyCourt's questions were sufficient to establish the elements of the crime charged" (People v Board, 75 AD3d 833,834 [2010]; see People v Caldwell, 80 AD3d at 998; People v Aubrey, 73 AD3d 1393, 1394 [2010]).
To the extent that defendant contends that his plea was involuntary, although this claimsurvives his waiver of the right to appeal, it too is unpreserved for our review in light ofdefendant's failure to move to withdraw his plea or vacate the judgment of conviction (seePeople v Dishaw, 81 AD3d at 1036; People v Phelan, 77 AD3d at 987; People v Scitz, 67 AD3d 1251,1251 [2009]). The narrow exception to the preservation requirement was not triggered here, asdefendant did not make any statements during his plea allocution that tended to negate a materialelement of the crime or otherwise cast doubt upon his guilt (see People v Aubrey, 73AD3d at 1394; People v Cintron, 62AD3d 1157, 1158 [2009], lv denied 13 NY3d 742 [2009]).
Inasmuch as the plea agreement did not specify the amount of restitution to be awarded,defendant's waiver of the right to appeal does not preclude him from challenging the restitutionorder (see People v Stevens, 80AD3d 791, 792 [2011]; People vFord, 77 AD3d 1176, 1176 [2010]; People v Travis, 64 AD3d 808, 808 [2009]). However, defendant'spresent claim—that the amount of restitution ordered lacks support in the record—isunpreserved for our review in light of defendant's failure to request a hearing or otherwise objectto or contest the sum awarded during sentencing (see People v Empey, 73 AD3d at 1389;People v Thomas, 71 AD3d at 1232; People v Snyder, 38 AD3d 1068, 1069 [2007]). In any event, thewritten summary detailing the bad checks that defendant passed and the associated bank fees wassufficient to support the amount of restitution awarded (see People v Thomas, 71 AD3dat 1232; People v Golgoski, 40AD3d 1138, 1138 [2007]). Defendant's remaining arguments, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Rose, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.