| People v Diallo |
| 2011 NY Slip Op 07523 [88 AD3d 1152] |
| October 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thierno M.Diallo, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedDecember 17, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
Defendant was charged in two indictments with criminal possession of a controlled substancein the third degree (three counts) and criminal sale of a controlled substance in the third degree.In October 2008, defendant pleaded guilty to one count of criminal possession of a controlledsubstance in the third degree in satisfaction of both indictments and executed a written waiver ofappeal. In accordance with the plea agreement, County Court then sentenced defendant to threeyears in prison followed by two years of postrelease supervision and further ordered him to pay$200 in restitution. Defendant now appeals.
Defendant's primary contention on this appeal—which would survive a valid waiver ofthe right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Stokely, 49 AD3d 966,968 [2008])—is that his plea was involuntary based upon the failure of County Court andhis trial counsel to advise him on the record of the immigration consequences of his conviction.It is now established that the failure of counsel to advise a defendant of the possibility ofdeportation as a result of his or her plea constitutes the ineffective assistance of counsel (seePadilla v Kentucky, 559 US —, —, 130 S Ct 1473, 1486 [2010]). Nonetheless,inasmuch as [*2]defendant limits his argument to the failure ofthe court and his attorney to advise him on the record of potential immigrationconsequences, Padilla does not specify that attorneys must do so (id. at 1486).Moreover, while defendant correctly asserts that CPL 220.50 (7) requires the court to advise adefendant on the record, before accepting a plea of guilty, that such plea might result indeportation, the statute explicitly provides that the failure to so advise a defendant does not affectthe voluntariness of the plea or the validity of the conviction (see CPL 220.50 [7]).
Defendant's challenge to the amount of restitution he was directed to pay also survives even avalid waiver of appeal where, as here, "the plea agreement did not specify the amount ofrestitution to be awarded" (People vEmpey, 73 AD3d 1387, 1388 [2010], lv denied 15 NY3d 804 [2010]; see People v Thomas, 71 AD3d1231, 1232 [2010], lv denied 14 NY3d 893 [2010]). In the instant matter, defendantagreed to pay restitution at the time of his plea allocution, but did not agree to a specific amount,nor was the method of determining the amount discussed. The presentence investigation reportprepared by the Probation Department contains a victim impact statement from the ClintonCounty District Attorney/Adirondack Drug Task Force seeking recovery of $200 for twocontrolled buys ($100 each) on the same date. At the sentencing hearing, defendant objected tothe $200 total because he had been charged with only one criminal sale of a controlled substancecount. He therefore argued that he should only be required to pay restitution of $100.
Defendant never contested the accuracy of the claimed expenditure of $100 per controlledbuy and never requested that County Court conduct a hearing, despite being advised by the courtthat he was entitled to such a hearing. Inasmuch as the only issue raised by defendant regardingrestitution was a purely legal one, a hearing was not required (compare People vConsalvo, 89 NY2d 140, 145-146 [1996]; People v Stevens, 80 AD3d 791, 792-793 [2011], lv denied16 NY3d 900 [2011]). Similarly, because defendant never challenged the accuracy of therestitution amount sought, we reject his contention—raised for the first time onappeal—that the law enforcement agency's failure to submit an affidavit supporting itsrestitution request pursuant to Penal Law § 60.27 (9) requires that the award be vacated(see People v Perez, 203 AD2d 665, 667 [1994], lv denied 83 NY2d 970 [1994]).Under these circumstances, we discern no abuse of County Court's discretion in orderingrestitution without a hearing (seegenerally People v Periard, 15 AD3d 693, 694 [2005]).
As to the merits of the award, a trial court "may require restitution or reparation as part of thesentence imposed upon a person convicted of an offense" (Penal Law § 60.27 [1]). Anoffense is defined as including "the offense for which a defendant was convicted, as well as anyother offense that is part of the same criminal transaction or that is contained in any otheraccusatory instrument disposed of by any plea of guilty by the defendant to an offense" (PenalLaw § 60.27 [4] [a]). Specifically, a defendant convicted of a "felony involving the sale ofa controlled substance" may be ordered to repay a law enforcement agency "the amount of fundsexpended in the actual purchase" of a controlled substance (Penal Law § 60.27 [9]). Here,even though defendant was charged with only one count of criminal sale of a controlledsubstance, the two controlled buys in question were part of the same criminal transaction andwere related to the possession charges in the indictment. Thus, County Court did not err inordering defendant to pay restitution for the buy money used in both controlled buys (seePeople v Perez, 203 AD2d at 667). On the other hand, County Court may not impose asurcharge when restitution is to be paid to a law enforcement agency (see Penal Law§ 60.27 [9]). Thus, the 10% surcharge imposed here must be vacated (see People vWilliams, 272 AD2d 990 [2000]; People v Perez, 203 AD2d at 667).[*3]
Defendant's remaining contentions have been consideredand found to be without merit.
Peters, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment is modified,on the law, by vacating so much thereof as directed defendant to pay a 10% surcharge on therestitution to the Clinton County District Attorney/Adirondack Drug Task Force, and, as somodified, affirmed.