| People v Smith |
| 2012 NY Slip Op 07332 [100 AD3d 1102] |
| November 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Louis J.Smith, Jr., Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Egan Jr., 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 the crime ofburglary in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with burglary in the third degree. Pursuant to the negotiated plea,defendant agreed to waive his right to appeal, admit his status as a second felony offender andpay an unspecified sum of restitution; in return, County Court agreed to sentence defendant to aprison term of 2 to 4 years. Insofar as is relevant here, the plea was conditioned upon defendantabstaining from the use of drugs—including marihuana—while he was released toprobation supervision pending sentencing. Notably, County Court expressly advised defendantthat if he violated any of the terms of his probation, the court could impose a sentence of3½ to 7 years in prison. After defendant tested positive for marihuana, County Courtsentenced defendant as a second felony offender to 3 to 6 years in prison and ordered restitutionin the amount of $27,900. This appeal by defendant ensued.
We affirm. Contrary to defendant's assertion, the record before us makes clear that restitutionindeed was part of the underlying plea agreement (compare People v McDowell, 56 AD3d 955, 956 [2008]; People v Harrington, 3 AD3d 737,738-739 [2004])—a finding that is in [*2]no way altered bythe brief recess in the proceedings that occurred between County Court's recitation of the termsof the plea and defendant's subsequent acceptance thereof. To the extent that defendant takesissue with the actual amount of restitution imposed, we initially note that inasmuch as theunderlying plea agreement did not specify the sum of restitution to be awarded, defendant'schallenge to the resulting restitution order is not precluded by his otherwise valid waiver of theright to appeal (see People v Planty,85 AD3d 1317, 1318 [2011], lv denied 17 NY3d 820 [2011]; People v Thomas, 71 AD3d 1231,1232 [2010], lv denied 14 NY3d 893 [2010]). However, defendant's presentclaim—that the amount of restitution awarded lacks sufficient support in therecord—is unpreserved for our review in light of his failure to request a hearing in thisregard or otherwise contest the sum awarded at sentencing (see People v Planty, 85 AD3dat 1318; People v White, 84 AD3d1641, 1642 [2011], lv denied 18 NY3d 887 [2012]; People v Thomas, 71AD3d at 1232).
Finally, although not precluded by his waiver of the right to appeal (see People v Coffey, 77 AD3d1202, 1203 [2010], lv denied 18 NY3d 882 [2012]), defendant's assertion thatCounty Court erred in imposing an enhanced sentence is lacking in merit. During the course ofthe plea colloquy, County Court expressly advised defendant that the use of any "illicitsubstances, including mari[h]uana," would constitute a violation of his release conditions andcould result in the imposition of an enhanced sentence. As defendant admittedly used marihuanaapproximately four days prior to sentencing, County Court's imposition of the enhanced sentencewas justified (see generally People vBove, 64 AD3d 812, 812-813 [2009], lv denied 13 NY3d 858 [2009]).Defendant's remaining contentions, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Peters, P.J., Rose, Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.