| People v Planty |
| 2011 NY Slip Op 04777 [85 AD3d 1317] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Herbert M.Planty III, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered February 1, 2010, convicting defendant upon his plea of guilty of the crime ofcriminal mischief in the fourth degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to one count of criminalmischief in the fourth degree, waived his right to appeal and was sentenced to one year in thelocal jail and ordered to pay restitution in the amount of $1,561.30. Defendant now appealscontending, among other things, that his plea was involuntary.
We affirm. Preliminarily, we reject defendant's assertion that his waiver of the right to appealwas invalid. County Court's explanation of the waiver, together with defendant's execution of adetailed written waiver in open court, sufficiently apprised defendant of the appellate rights hewas forfeiting. Further, in response to County Court's questioning, defendant indicated that heunderstood the nature and ramifications of the waiver and confirmed that he had been affordedsufficient time to confer with counsel. Finally, "[t]he waiver of appeal was not rendered invalidas a result of County Court's failure to expressly recite, as set forth in the written waiver ofappeal executed by defendant in open court, that it would only accept a plea if defendant waivedhis right to appeal" (People v White,84 AD3d 1641, 1641 [2011]). We therefore find that defendant knowingly, intelligently andvoluntarily [*2]waived his right to appeal (see People v Dishaw, 81 AD3d1035, 1036 [2011], lv denied 16 NY3d 858 [2011]; People v Thomas, 81 AD3d 997,998 [2011]; People v Minter, 71AD3d 1335, 1335-1336 [2010], lv denied 15 NY3d 754 [2010]).
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 his plea or vacate the judgment of conviction (see People v Richardson, 83 AD3d 1290, 1291 [2011]; People vDishaw, 81 AD3d at 1036; People vCaldwell, 80 AD3d 998, 998 [2011], lv denied 16 NY3d 857 [2011]). To theextent that defendant challenges the voluntariness of his plea, although this claim survives hiswaiver of the right to appeal, it, too, is unpreserved for our review in light of defendant's failureto move to withdraw his plea or vacate the judgment of conviction (see People v Wicks, 83 AD3d1223, 1224 [2011]; People v Thomas, 81 AD3d at 998; People v Singh, 73 AD3d 1384,1384-1385 [2010], lv denied 15 NY3d 809 [2010]). Moreover, the narrow exception tothe preservation requirement was not triggered here, as defendant did not make any statementsduring the allocution that were inconsistent with his guilt or otherwise called into question thevoluntariness of his plea (see People v Caldwell, 80 AD3d at 998; People v Terpening, 79 AD3d1367, 1367-1368 [2010], lv denied 16 NY3d 837 [2011]; People v Board, 75 AD3d 833,833 [2010]).
Defendant's ineffective assistance of counsel claim, insofar as it impacts upon thevoluntariness of his plea and, hence, survives the waiver of appeal, also is unpreserved for ourreview due to the absence of an appropriate postallocution motion (see People v Small, 82 AD3d1451, 1452 [2011]; People vSmith, 81 AD3d 1034, 1035 [2011]; People v Rivera, 78 AD3d 1423, 1424 [2010]). To the degree thatdefendant's ineffective assistance of counsel claim implicates matters outside the record, suchissues are more properly addressed in the context of a CPL article 440 motion (see People vTerpening, 79 AD3d at 1368; People v Lopez, 74 AD3d 1498, 1499 [2010]).
As to the issue of restitution, because the underlying plea agreement did not specify theamount of restitution to be awarded, defendant may challenge the restitution ordernotwithstanding his waiver of the right to appeal (see People v Stevens, 80 AD3d 791, 792 [2011]; People v Ford, 77 AD3d 1176,1176 [2010]; People v Travis, 64AD3d 808, 808 [2009]). However, defendant's assertion that the amount of restitutionawarded by County Court lacks support in the record is unpreserved for our review givendefendant's failure to request a hearing or otherwise contest the sum awarded at sentencing (see People v Empey, 73 AD3d1387, 1389 [2010], lv denied 15 NY3d 804 [2010]; People v Thomas, 71 AD3d 1231,1232 [2010], lv denied 14 NY3d 893 [2010]; People v Snyder, 38 AD3d 1068, 1069 [2007]).
Finally, inasmuch as defendant has served his one-year jail term and has been released, hischallenge to the severity of his sentence is moot (see People v Gagnier, 29 AD3d 1081 [2006]; People v Swartout, 28 AD3d 876,877 [2006]) and, in any event, is precluded by his valid waiver of the right to appeal (seePeople v Rivera, 78 AD3d at 1424; People v Houck, 74 AD3d 1476, 1477 [2010]). Defendant'sremaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
Rose, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.