| People v Stachnik |
| 2012 NY Slip Op 08873 [101 AD3d 1590] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v StanleyStachnik, Appellant. (Appeal No. 1.) |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedApril 28, 2009. The judgment revoked defendant's sentence of probation and imposed a sentenceof imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment revoking the sentence ofprobation previously imposed upon his 2007 conviction of grand larceny in the third degree(Penal Law former § 155.35) and sentencing him to an indeterminate term ofimprisonment. In appeal No. 2, defendant appeals from a 2009 judgment convicting him upon hisplea of guilty of grand larceny in the third degree (id.) and sentencing him to anindeterminate term of imprisonment that was to run concurrently with the sentence imposed inappeal No. 1. County Court also ordered that defendant pay restitution.
Defendant contends in appeal No. 1 that he was denied effective assistance of counsel withregard to his admission to a violation of probation. Specifically, defendant contends that defensecounsel was ineffective because he initially permitted defendant to agree to an illegal sentenceand because, despite the court's vacatur of the illegal sentence the next day, he did not informdefendant that defendant ultimately agreed to accept the maximum permissible term ofimprisonment. To the extent that it survives his admission (see People v Allick, 72 AD3d 1615, 1616 [2010]), we rejectdefendant's contention. Inasmuch as the court vacated the illegal sentence, defendant failed toestablish that he was prejudiced by the initial imposition of that sentence (see generally People v Ennis, 11 NY3d403, 412 [2008], cert denied 556 US 1240 [2009]; People v Lott, 55 AD3d 1274,1275 [2008], lv denied 11 NY3d 898 [2008], reconsideration denied 12 NY3d760 [2009]). Further, the record does not support defendant's contention that he was unaware thathe agreed to the maximum permissible sentence. We conclude that "the evidence, the law, andthe circumstances of [this] case, viewed in totality and as of the time of representation, revealthat [defense counsel] provided meaningful representation" (People v Baldi, 54 NY2d137, 147 [1981]). To the extent that defendant contends that he was denied effective assistance ofcounsel because [*2]defense counsel gave him incorrectinformation and advice in an off-the-record discussion, that contention involves matters outsidethe record on appeal and must be raised by way of a motion pursuant to CPL article 440 (see People v Gianni, 94 AD3d1477, 1477 [2012], lv denied 19 NY3d 973 [2012]; People v Balenger, 70 AD3d 1318,1318 [2010], lv denied 14 NY3d 885 [2010]).
Defendant next contends in appeal No. 1 that he was denied the right to be heard and theright to make a statement pursuant to CPL 410.70 before he admitted to the violation ofprobation. Defendant failed to preserve that contention for our review (see Gianni, 94AD3d at 1477; see also People vRandall, 48 AD3d 1080, 1080 [2008]; see generally People v Ebert, 18 AD3d 963, 964 [2005]), and inany event defendant's contention is without merit (see generally People v Oskroba, 305NY 113, 117 [1953], rearg denied 305 NY 696 [1953]; People v Matos, 28 AD3d 1120,1121-1122 [2006]). Thus, we also reject defendant's alternative contention that defense counsel'salleged failure to preserve that issue for our review rendered him ineffective (see generally People v Bassett, 55AD3d 1434, 1438 [2008], lv denied 11 NY3d 922 [2009]).
Defendant further contends in appeal No. 1 that the court abused its discretion in failing toorder an updated presentence report prior to sentencing him for the violation of probation.Defendant did not request that the court order an updated presentence report or otherwise objectto sentencing in the absence of such a report. Thus, defendant's contention is not preserved forour review (see Gianni, 94 AD3d at 1478; People v Carey, 86 AD3d 925, 925 [2011], lv denied 17NY3d 814 [2011]; People vObbagy, 56 AD3d 1223, 1223 [2008], lv denied 11 NY3d 928 [2009]; People v Pomales, 37 AD3d 1098,1098 [2007], lv denied 8 NY3d 949 [2007]). In any event, that contention is withoutmerit. At the time it sentenced defendant on the violation of probation, the court had before it thedeclaration of delinquency as well as information that defendant had been arrested and wasfacing new grand larceny charges, which "constituted the functional equivalent of an updated[presentence] report" (People vFairman, 38 AD3d 1346, 1347 [2007], lv denied 9 NY3d 865 [2007] [internalquotation marks omitted]; see People v Orlowski, 292 AD2d 819, 819 [2002], lvdenied 98 NY2d 653 [2002]). "Further, inasmuch as the same judge presided over both theoriginal proceeding[ ] and the revocation proceeding[ ], '[t]he court was fully familiar with anychanges in defendant's status, conduct or condition since the original sentencing' "(Gianni, 94 AD3d at 1478).
With regard to appeal No. 2, we reject defendant's contention that his waiver of the right toappeal was not knowingly, intelligently, and voluntarily entered (see generally People v Lopez, 6 NY3d248, 256 [2006]). We agree with defendant, however, that the court erred in imposing asurcharge of 10% of the total amount of restitution ordered rather than the surcharge of 5% that isdirected by Penal Law § 60.27 (8). Initially, we note that defendant's valid waiver of theright to appeal does not preclude our review of that issue because "[a] defendant cannot bedeemed to have waived his right to be sentenced as provided by law" (People v GahreyM.O., 231 AD2d 909, 910 [1996] [internal quotation marks omitted]; see People vWatson, 197 AD2d 880, 880 [1993]). Concerning the merits, an additional surcharge of 5%is authorized only "[u]pon the filing of an affidavit of the official or organization designatedpursuant to [CPL 420.10 (8)] demonstrating that the actual cost of the collection andadministration of restitution . . . in a particular case exceeds 5% of the entireamount of the payment" (Penal Law § 60.27 [8]). In this case, "the record does not containsuch an affidavit, and there is no showing or assertion that one was filed. Thus, the imposition ofthe additional 5% surcharge was not authorized," and we therefore modify the judgment inappeal No. 2 accordingly (Gahrey M.O., 231 AD2d at 910).
Finally, with respect to appeal Nos. 1 and 2, defendant contends that the sentences are undulyharsh and severe. Insofar as defendant's contention relates to the sentence imposed in appeal No.2, "[d]efendant's valid waiver of the right to appeal encompasses his challenge to the severity ofthe sentence" (People v Harris, 94AD3d 1484, 1485 [2012], lv denied 19 NY3d 961 [2012]; see Lopez, 6NY3d at 255-256; People v Gordon,89 AD3d 1466, 1466 [2011], lv denied 18 NY3d 957 [2012]). [*3]The bargained-for sentence in appeal No. 1 is not unduly harsh orsevere. Present—Fahey, J.P., Peradotto, Carni, Whalen and Martoche, JJ.