| People v Miller |
| 2011 NY Slip Op 06698 [87 AD3d 1303] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joshua L.Miller, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedNovember 23, 2009. The judgment convicted defendant, upon his plea of guilty, of attemptedassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]), defendantcontends that County Court made an insufficient inquiry regarding his waiver of the right toappeal and thus that the waiver is invalid. We reject defendant's contention. The court need notengage in any particular litany regarding a waiver of the right to appeal, so long as the court"make[s] certain that a defendant's understanding of the terms and conditions of a plea agreementis evident on the face of the record" (People v Lopez, 6 NY3d 248, 256 [2006]). Here, the recordestablishes that defendant's waiver of the right to appeal was made knowingly, intelligently, andvoluntarily (see id.; People vSchenk, 77 AD3d 1417 [2010], lv denied 15 NY3d 924 [2010],reconsideration denied 16 NY3d 836 [2011]). Although the valid waiver of the right toappeal does not encompass defendant's further contention that the Alford plea was notknowingly, intelligently or voluntarily entered, defendant failed to preserve that contention forour review by failing to move to withdraw his plea or to vacate the judgment of conviction (see People v McKeon, 78 AD3d1617, 1618 [2010], lv denied 16 NY3d 799 [2011]). In any event, that contention iswithout merit. Despite his denials of guilt, defendant stated clearly on the record that he wantedto enter a guilty plea to avoid the possibility of a more severe sentence in the event that the caseproceeded to trial. Defendant's statements demonstrate that his decision to enter a guilty pleadespite his purported innocence was "the product of a voluntary and rational choice," and thusthe Alford plea was proper (Matter of Silmon v Travis, 95 NY2d 470, 475[2000]; see People v Hinkle, 56AD3d 1210 [2008]).
Defendant contends that the People breached the plea agreement by making a sentencingrecommendation. Although defendant's valid waiver of the right to appeal does not encompassthat contention (see People v Vancise, 302 AD2d 864 [2003]), defendant failed topreserve it for our review by failing to object to the People's recommendation during sentencing(see People v Stripling, 136 AD2d 772, 773 [1988]). In any event, defendant's contentionis without merit. The [*2]prosecutor stated during the pleacolloquy that there was no sentencing promise, but the prosecutor never agreed to refrain frommaking a sentencing recommendation (cf. People v Tindle, 61 NY2d 752, 753-754[1984]; People v Hoeltzel, 290 AD2d 587, 587-588 [2002]). The valid waiver of the rightto appeal also does not encompass defendant's further contention that the court erred indetermining the amount of restitution. Defendant, however, waived his right to a hearing onrestitution and thus failed to preserve that contention for our review (see People v Jorge N.T., 70 AD3d1456, 1457 [2010], lv denied 14 NY3d 889 [2010]), and we decline to exercise ourpower to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Finally, the valid waiver of the right to appeal does not encompass defendant's challenge tothe severity of the sentence because he waived his right to appeal before being advised of themaximum possible sentence (see Peoplev Martinez, 55 AD3d 1334 [2008], lv denied 11 NY3d 927 [2009]). Wenevertheless conclude that the sentence is not unduly harsh or severe. Present—Centra,J.P., Peradotto, Carni, Green and Gorski, JJ.