| People v Faranda |
| 2011 NY Slip Op 06043 [86 AD3d 862] |
| July 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelFaranda, Also Known as Anthony Vigorita, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Kavanagh, J. Appeals (1) from a judgment of the County Court of Columbia County (Czajka,J.), rendered September 30, 2009, convicting defendant upon his plea of guilty of the crimes ofburglary in the second degree, grand larceny in the second degree, forgery in the second degree,driving while intoxicated (two counts) and aggravated unlicensed operation of a motor vehicle inthe first degree, and (2) by permission, from an order of said court, entered July 6, 2010, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
Defendant was charged by indictment with driving while intoxicated as a felony (twocounts), aggravated unlicensed operation of a motor vehicle in the first degree and forgery in thesecond degree. He was later charged in a second indictment with burglary in the second degree,grand larceny in the second degree and criminal possession of stolen property in the seconddegree. Defendant subsequently pleaded guilty to all charges in the first indictment, and toburglary in the second degree and grand larceny in the second degree in the second indictment.An agreement was entered between defendant, the People and County Court to the effect that anyprison terms imposed for these convictions would be concurrent with each other and thatdefendant, in addition to a surcharge, would be held jointly and severally liable with his [*2]codefendants for restitution in the amount of $105,000. In addition,the People agreed that it would recommend that the court sentence defendant to an aggregateprison term of 3½ years, plus 2½ years of postrelease supervision. However, CountyCourt observed that if it was determined that defendant was a predicate felon, the minimumsentence that could be imposed for these convictions was five years in prison, plus five years ofpostrelease supervision.
Prior to entering his guilty plea, defendant, with the assistance of counsel, signed andinitialed each paragraph of an eight-page written plea agreement in which he acknowledged, asrelevant here, that he was aware of the maximum sentence that could be imposed for theseconvictions and that County Court had made no commitment regarding the People'srecommendation concerning sentencing. County Court ultimately sentenced defendant, as asecond felony offender, to an aggregate prison term of 10 years, with five years of postreleasesupervision, and directed that he pay the surcharge as well as restitution in the agreed-uponamount. Defendant's subsequent CPL article 440 motion to vacate the judgment of convictionwas denied without a hearing. He now appeals from the judgment of conviction and, bypermission, the denial of his motion.
We affirm. Defendant's plea allocution and his counseled written plea agreement establishthat his guilty plea was entered voluntarily and intelligently. Contrary to his contention, CountyCourt did not agree to adopt the sentencing recommendation made by the People, nor did itcommit to impose the minimum sentence allowed by law (see People v McKenzie, 28 AD3d 942, 943 [2006], lvdenied 7 NY3d 759 [2006]; Peoplev Mills, 17 AD3d 712, 713 [2005], lv denied 5 NY3d 766 [2005]; see also People v Bunce, 45 AD3d982, 984-985 [2007], lv denied 10 NY3d 809 [2008]). We also reject defendant'scontention that he was denied the effective assistance of counsel. In that regard, defendant's claimthat counsel did not inform him that County Court was not bound by the People's sentencingrecommendation is belied by his acknowledgment of this fact in the written plea agreement(see People v Bunce, 45 AD3d at 984). As for restitution, given the content of the writtenplea agreement, where defendant acknowledged that restitution in the specified amount of$105,000 would be imposed at sentencing, his agreement to that amount during the pleaallocution and his lack of any objection, a restitution hearing was not required (see PenalLaw § 60.27 [2]; People vGolgoski, 40 AD3d 1138, 1138 [2007]; People v Drew, 16 AD3d 840, 841 [2005]; cf. People vPeters, 299 AD2d 663, 664 [2002]). Therefore, counsel's failure to request a hearing did notdeprive defendant of meaningful representation. Finally, we see no reason, given defendant'sextensive criminal history, to modify his sentence (see People v Darby, 72 AD3d 1280, 1284 [2010], lv denied15 NY3d 747 [2010]; People vLowe, 53 AD3d 982, 983 [2008]).
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment and order areaffirmed.