| People v Sherman |
| 2012 NY Slip Op 00053 [91 AD3d 982] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AlbertL. Sherman, Jr., Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan Becker of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered March 22, 2010, convicting defendant upon his plea of guilty of thecrime of assault in the second degree.
Defendant was charged in a superior court information, waived indictment and pleaded guiltyto assault in the second degree. Pursuant to the plea agreement, defendant waived his right toappeal and agreed to pay restitution for the out-of-pocket medical expenses incurred by thevictim. Further, it was understood that defendant would be released pending sentencing and, if hecooperated with the terms of his release, he would be allowed to withdraw his plea and enter aguilty plea to attempted assault in the second degree. While on release, defendant was arrestedafter he allegedly attempted to rob someone at gunpoint. County Court thereafter found thatdefendant had violated the terms of his release and sentenced him, as a second felony offender, tofive years in prison to be followed by five years of postrelease supervision. Defendant was alsoordered to pay restitution in the amount of $10,000. Defendant now appeals.
We affirm. Initially, we find that defendant validly waived his right to appeal. Contrary todefendant's contention, the waiver was not rendered invalid by County Court's failure to reciteduring allocution, as set forth in the written waiver of appeal executed by defendant in opencourt, that it would not accept his plea unless defendant waived his right to appeal. The record[*2]demonstrates that defendant was informed prior to enteringhis plea that he would be required to waive his right to appeal as part of the plea. Further, CountyCourt explained the ramifications of the waiver during allocution, which defendant stated that heunderstood, and defendant then executed the written waiver. Under these circumstances, we finda knowing, intelligent and voluntary waiver of the right to appeal (see People v Planty, 85 AD3d1317, 1317 [2011], lv denied 17 NY3d 820 [2011]; People v White, 84 AD3d 1641,1641 [2011]).
Defendant's contention that his plea was not knowingly, intelligently and voluntarily entered,which survives his appeal waiver, is not preserved for our review in light of his failure to moveto withdraw his plea or vacate the judgment of conviction (see People v Robinson, 86 AD3d 719, 720 [2011]; People v Hill, 81 AD3d 1040[2011]). Moreover, the narrow exception to the preservation rule is inapplicable here insofar asdefendant did not make any statements during allocution that negated a material element of thecrime or otherwise cast doubt upon his guilt (see People v Gantt, 84 AD3d 1642, 1643 [2011]; People v Campbell, 81 AD3d1184, 1185 [2011]).
Regarding restitution, inasmuch as the amount to be awarded was not specified in the pleaagreement, defendant's challenge to the restitution order is not precluded by his appeal waiver(see People v Stevens, 80 AD3d791, 792 [2011], lv denied 16 NY3d 900 [2011]). However, while at sentencingdefendant questioned certain items in the victim's itemized medical bill, which was included withthe presentence investigation report and totaled $16,337.84, defendant did not request arestitution hearing or challenge the $10,000 ultimately awarded by County Court. Accordingly,his claim that the amount awarded is not supported by the record is not preserved for our review(see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Empey, 73 AD3d 1387, 1389 [2010], lv denied 15NY3d 804 [2010]). In any event, the victim's medical bill supported the amount of restitutionordered (see People v Kim, 91 NY2d 407, 411 [1998]; People v Thomas, 71 AD3d 1231,1232 [2010], lv denied 14 NY3d 893 [2010]).
Defendant's claim that his sentence is harsh and excessive is precluded by his waiver of theright to appeal (see People v Lopez,6 NY3d 248, 256 [2006]; People vJones, 83 AD3d 1289, 1290 [2011], lv denied 17 NY3d 860 [2011]). Finally,defendant's remaining claims, including that County Court abused its discretion in denying hisrequest for an adjournment at sentencing, have been examined and found to be without merit.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.