| People v Rolley |
| 2012 NY Slip Op 08181 [100 AD3d 1263] |
| November 29, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jason C.Rolley, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Franklin County (Clute, J.),rendered January 19, 2011, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fifth degree.
In satisfaction of a superior court information and other pending charges, defendant pleadedguilty to criminal possession of a controlled substance in the fifth degree. In addition, defendantagreed to pay restitution and executed a waiver of his right to appeal in open court. Although thePeople agreed to recommend a sentence of two years in prison followed by two years ofpostrelease supervision, County Court informed defendant that it was making no commitment asto sentencing. Thereafter, County Court sentenced defendant, as a second felony offender, tothree years in prison followed by two years of postrelease supervision and ordered him to payrestitution, including various surcharges. Defendant appeals.
Initially, we agree with defendant that the waiver of the right to appeal is invalid. Although"a trial court need not engage in any particular litany or catechism in satisfying itself that adefendant has entered a knowing, intelligent and voluntary appeal waiver, a trial court must makecertain that a defendant's understanding of the waiver . . . is evident on the face ofthe record" (People v Bradshaw, 18NY3d 257, 265 [2011] [internal quotation marks and citation [*2]omitted]). Here, in view of the fleeting reference to defendant'sappeal waiver and absence of any acknowledgment by defendant that he understood theramifications of the waiver, we cannot conclude that he knowingly, voluntarily and intelligentlywaived his right to appeal (see People vBurton, 93 AD3d 949, 949 [2012], lv denied 19 NY3d 958 [2012]).
Turning to the merits, given that the amount of restitution was explicitly included in the pleaagreement and defendant did not object to that amount or request a hearing, his challenge to therestitution order is not preserved for our review (see People v Dishaw, 81 AD3d 1035, 1037 [2011], lvdenied 16 NY3d 858 [2011]; Peoplev Giovanni, 53 AD3d 778, 778-779 [2008], lv denied 11 NY3d 832 [2008]).Similarly, defendant's challenge to the 10% restitution surcharge is not preserved absent anobjection at sentencing (see People vSnyder, 38 AD3d 1068, 1069 [2007]). Finally, given defendant's extensive criminalhistory and the fact that County Court informed defendant during the plea colloquy of themaximum potential sentence, we find no abuse of discretion nor any extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People v Mosley, 87 AD3d1179, 1179 [2011]; People vQasem, 39 AD3d 960, 961 [2007], lv denied 10 NY3d 770 [2008]).
Mercure, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.