| People v Gibson |
| 2011 NY Slip Op 07652 [88 AD3d 1012] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jamell Gibson, Also Known as Jermell Gibson,Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered May 6, 2010, convicting him of robbery in the first degree, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
Where the plea minutes do not indicate that a plea of guilty was negotiated with terms thatincluded restitution, at sentencing the defendant should be "given an opportunity either towithdraw his plea or to accept the enhanced sentence that included both restitution and a prisonsentence" (People v Ortega, 61AD3d 705, 706 [2009]; see Peoplev Kegel, 55 AD3d 625 [2008]; People v Henderson, 44 AD3d 873, 874 [2007]). Here, althoughthe plea minutes do not indicate that the defendant's plea of guilty was negotiated with terms thatincluded restitution, at sentencing, after being given an opportunity to withdraw his plea, thedefendant decided to accept the enhanced sentence that included both restitution and a prisonsentence. Accordingly, the defendant waived his contention that his plea of guilty was notknowingly, voluntarily, and intelligently entered into because he was not advised of the terms ofrestitution prior to entering his plea (see People v Ahmed, 66 NY2d 307, 311 [1985]; People v Faso, 82 AD3d 1584,1585 [2011]; People v Lugo, 191 AD2d 648 [1993]).
By pleading guilty, the defendant forfeited his claim of ineffective assistance of counsel tothe extent that it does not directly involve the plea bargaining process (see People vPetgen, 55 NY2d 529, 535 n 3 [1982]; People v Harris, 79 AD3d 1069, 1070-1071 [2010]; People v Patel, 74 AD3d 1098,1099 [2010]). To the extent that the claim can be reviewed on this appeal, the record reveals thatthe defendant was provided with effective assistance of counsel (see People v Ford, 86NY2d 397, 404 [1995]).
Since the defendant pleaded guilty with the understanding that he would receive the prisonsentence which was thereafter actually imposed, he has no basis to now complain that thesentence imposed was excessive (seePeople v Gantt, 85 AD3d 815 [2011]; People v Tate, 84 AD3d 1416, 1417 [2011]; People vKazepis, 101 AD2d 816 [1984]).[*2]
The defendant's remaining contention is unpreserved forappellate review and, in any event, without merit. Rivera, J.P., Florio, Dickerson and Lott, JJ.,concur.