| People v Vasavada |
| 2012 NY Slip Op 01525 [93 AD3d 893] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jonas F.Vasavada, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered May 26, 2010, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the fifth degree.
Defendant pleaded guilty to attempted criminal possession of a controlled substance in thefifth degree in satisfaction of an indictment charging him with criminal possession of a controlledsubstance in the fifth degree and assault in the second degree arising out of a physical altercationbetween defendant and another inmate at a state correctional facility. In return, defendant was tobe sentenced as a second felony drug offender to two years in prison followed by two years ofpostrelease supervision, make restitution in connection with the assault charge and waive hisright to appeal. County Court sentenced defendant as agreed and imposed restitution in theamount of $797.18. Defendant now appeals.
We affirm. The record clearly shows that defendant knowingly, intelligently and voluntarilywaived his right to appeal (see People vLopez, 6 NY3d 248, 256 [2006]; cf. People v Bradshaw, 18 NY3d 257, 264-265 [2011]), effectivelyforeclosing his challenge to the factual sufficiency of his plea and to the harshness of his sentence(see People v Planty, 85 AD3d1317, 1317-1318 [2011], lv denied 17 NY3d 820 [2011]; People v Dishaw, 81 AD3d 1035,1036 [2011], lv denied 16 NY3d 858 [2011]; People v Thomas, 71 AD3d 1231, 1231-1232 [2010], lv [*2]denied 14 NY3d 893 [2010]). Although defendant's challengeto the amount of restitution survives his waiver of the right to appeal because the plea agreementwas silent in this regard, defendant did not preserve this issue by requesting a hearing orotherwise contesting the sum imposed at sentencing (see People v Planty, 85 AD3d at1318; People v Thomas, 71 AD3d at 1232). In any event, County Court's imposition ofrestitution for the assault charge based upon a victim impact statement submitted by thecorrectional facility was proper (seePeople v Diallo, 88 AD3d 1152, 1153-1154 [2011]; People v Thomas, 71 AD3dat 1232).
Finally, although the judgment is being affirmed, the uniform sentence and commitmentsheet contains a clerical error in which it incorrectly indicates that defendant was convicted andsentenced as a second felony offender (see Penal Law § 70.06 [3] [e]) instead of asa second felony drug offender (see Penal Law § 70.70 [3] [b] [iv]), and it must beamended accordingly (see People vHawkins, 70 AD3d 1389, 1390 [2010], lv denied 14 NY3d 888 [2010]; People v Lore, 59 AD3d 1126,1127 [2009], lv denied 12 NY3d 917 [2009]).
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.