| People v Secore |
| 2013 NY Slip Op 00519 [102 AD3d 1057] |
| January 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vBrandon M. Secore, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 24, 2011, which revoked defendant's probation andimposed a sentence of imprisonment.
The background facts of this case are more fully set forth in the companion caseinvolving defendant (People v Secore, 102 AD3d 1059 [2013] [decidedherewith]). As is relevant here, defendant was sentenced in 2008 to a five-year term ofprobation upon his plea of guilty to the crime of grand larceny in the fourth degreearising from his unauthorized use of a credit card. While on probation, he was chargedwith additional crimes, including forgery in the second degree. He subsequently pleadedguilty to the forgery charge as well as to violating the conditions of his probation, andwaived his right to appeal. In return, he was accepted into the judicial diversion program(see CPL art 216), which required him to participate in an intensive drug andalcohol treatment program in lieu of being sentenced to prison. Defendant, however, didnot successfully complete the program, admitted his violations and waived his right to ahearing. As a result, County Court, among other things, revoked his probation andresentenced him as a second felony offender to 1
Defendant challenges the validity of his plea ofguilty to violating the conditions of his probation and County Court's award of restitutionas well as the 10% surcharge. Initially, defendant entered into the same waiver of hisright to appeal with respect to the probation violation that he did with respect to theforgery charge. As we note in the companion case, the waiver was not valid because it isnot clear from the record that defendant fully understood that such right was separate anddistinct from the other rights he was forfeiting by his guilty plea (see People v Lopez, 6 NY3d248, 256-257 [2006]; People v Secore, supra). Accordingly, the waiver doesnot preclude him from raising his claims here.
Nevertheless, inasmuch as the record fails to indicate that defendant moved to vacatethe judgment of conviction or withdraw his plea of guilty to the probation violation, hehas not preserved his challenge to the voluntariness of his guilty plea (see People v Lewis, 69 AD3d1232, 1234 [2010]; People v Banks, 305 AD2d 812, 812 [2003], lvdenied 100 NY2d 578 [2003]). Moreover, the exception to the preservationrequirement is inapplicable insofar as defendant did not make statements that wereinconsistent with his guilt or that cast doubt on the voluntariness of his plea (seePeople v Lewis, 69 AD3d at 1234).
Similarly, defendant's challenge to the amount of restitution awarded is not preservedfor our review due to his failure to request a hearing or otherwise contest the amount ofrestitution awarded at resentencing (see People v Nickel, 97 AD3d 983, 984 [2012]; People v Planty, 85 AD3d1317, 1318 [2011], lv denied 17 NY3d 820 [2011]). Significantly, defendanthad many opportunities to dispute the amount of restitution in prior proceedings on thematter but failed to do so. The St. Lawrence County Probation Department submitted anaffidavit in accordance with Penal Law § 60.27 (8) supporting the imposition ofthe 10% collection surcharge to be included in the restitution amount (see People v Boyzuck, 72AD3d 1530, 1531 [2010]). Given that defendant did not object or otherwisechallenge this surcharge, he has failed to preserve this claim as well (see People v Snyder, 38 AD3d1068, 1069 [2007]).
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.