| People v Spencer |
| 2011 NY Slip Op 06677 [87 AD3d 1284] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph R.Spencer, Appellant. (Appeal No. 1.) |
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Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedApril 16, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of burglary in the third degree (Penal Law § 140.20) and, in appeal No. 2, heappeals from a judgment convicting him upon his plea of guilty of attempted criminal possessionof a controlled substance in the fifth degree (§§ 110.00, 220.06 [2]) and criminallypossessing a hypodermic instrument (§ 220.45). With respect to appeal No. 1, "[t]hechallenge by defendant to the amount of restitution is not foreclosed by his waiver of the right toappeal because the amount of restitution was not included in the terms of the plea agreement" (People v Sweeney, 4 AD3d 769,770 [2004], lv denied 2 NY3d 807 [2004]; cf. People v Gilmore, 12 AD3d 1155, 1156 [2004]). Defendantwaived that challenge, however, because he failed to object to the amount of restitution atsentencing (see Sweeney, 4 AD3d at 770). He also "failed to preserve that challenge forour review, . . . by failing to request a hearing or to object to the amount ofrestitution" (People v Lovett, 8AD3d 1007, 1008 [2004], lv denied 3 NY3d 677 [2004]; see People vHorne, 97 NY2d 404, 414 n 3 [2002]). Furthermore, there is no support in the record fordefendant's contention that he was deprived of the benefit of his plea bargain, i.e., that he did notreceive the benefit that he was promised in exchange for pleading guilty (cf. People v Pichardo, 1 NY3d 126[2003]). With respect to defendant's further contention in appeal No. 1, that County Court erredin refusing to suppress his statements to the police, that contention is encompassed bydefendant's valid waiver of the right to appeal, and we therefore do not address it (see Peoplev Kemp, 94 NY2d 831, 833 [1999]).
With respect to appeal No. 2, defendant contends that his waiver of indictment was invalidinasmuch as there is no evidence in the record before us that a local criminal court held him overfor the action of a grand jury on the charges in the superior court information (SCI). Defendant iscorrect that his contention "is a jurisdictional one which survives his appeal waiver and guiltyplea" (People v Dennis, 66 AD3d1058, 1058 [2009]; see People v Boston, 75 NY2d 585, 589 n [1990]), and we agreewith defendant that his contention has merit. As the record establishes, at the time defendantwaived indictment and consented to be prosecuted by an SCI, he had already been indicted on theburglary charges, which arose from the same incident. Consequently, we agree [*2]with defendant that, "[g]iven the objective and the plain language ofCPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished afterindictment, as was the case here, even where it is the defendant who orchestrates the scenario"(Boston, 75 NY2d at 589). We therefore reverse the judgment in appeal No. 2, vacate thesentence imposed, and dismiss the SCI. Present—Scudder, P.J., Smith, Carni, Lindley andMartoche, JJ.