| People v Leone |
| 2012 NY Slip Op 08821 [101 AD3d 1352] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Frank C.Leone Jr., Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.),rendered June 15, 2010, convicting defendant upon his plea of guilty of the crimes of grandlarceny in the fourth degree and forgery in the second degree.
Defendant waived indictment, as well as his right to appeal, and pleaded guilty to a superiorcourt information charging him with grand larceny in the fourth degree and forgery in the seconddegree. Defendant thereafter was sentenced as a second felony offender to the recommendedprison term of 2 to 4 years for each crime—said sentences to be servedconsecutively—and ordered to pay, among other things, restitution and the statutorysurcharge. This appeal ensued.
We affirm. Defendant's challenge to the factual sufficiency of his plea is precluded by hisvalid waiver of the right to appeal and, further, is unpreserved for our review absent evidence onthis record that defendant moved to withdraw his plea or vacate the judgment of conviction (see People v Flake, 95 AD3d1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Planty, 85 AD3d 1317,1317-1318 [2011], lv denied 17 NY3d 820 [2011]). Although defendant's assertion thathis plea was involuntary survives his waiver of appeal, this claim also is unpreserved for ourreview in the absence of an appropriate postallocution motion (see People v Wicks, 83 AD3d1223, 1224 [2011], lv denied 17 NY3d 810 [2011]; People v Thomas, 81[*2]AD3d 997, 998 [2011], lv denied 16 NY3d 900[2011]). The narrow exception to the preservation rule has not been triggered here, as defendantdid not make any statements during the course of the plea allocution that negated an essentialelement of the crimes charged or otherwise called into question his guilt (see People v White, 96 AD3d1299, 1300 [2012], lv denied 19 NY3d 1029 [2012]; People v Klages, 90 AD3d 1149,1150 [2011], lv denied 18 NY3d 925 [2012]).
As for the issue of restitution, contrary to defendant's present claim, "the record before usmakes clear that restitution indeed was part of the underlying plea agreement" (People v Smith, 100 AD3d 1102,1102 [2012]). Further, although defendant's challenge to the amount of restitution actuallyordered survives his otherwise valid waiver of the right to appeal because the plea agreement wassilent on this point, his current challenge to the sum imposed—as well as his claim thatsuch amount lacks sufficient support in the record—is unpreserved for our review in lightof his failure to request a hearing or otherwise contest the sum imposed at the time of sentencing(see People v Smith, 100 AD3d at 1102-1103; People v Vasavada, 93 AD3d 893, 894 [2012], lv denied 19NY3d 978 [2012]). Finally, "we do not require that a defendant be advised, prior to his or herplea, that the statutory surcharge is a part of the sentence" (People v Salmans, 49 AD3d 961, 962 [2008]). Accordingly,defendant's argument on this point must fail.
Peters, P.J., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.