| People v Leone |
| 2013 NY Slip Op 02780 [105 AD3d 1249] |
| April 25, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v FrankC. Leone, Appellant. |
—[*1] Shane A. Zoni, Special Prosecutor, Valatie, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Columbia County(Czajka, J.), rendered July 14, 2010, convicting defendant upon his plea of guilty of thecrime of grand larceny in the fourth degree.
Defendant waived indictment and agreed to be prosecuted by a superior courtinformation charging him with grand larceny in the fourth degree. In conjunction withhis plea of guilty to that charge, defendant signed a written document setting forth theconditions of the plea agreement, which included a waiver of the right to appeal and ajoint sentencing recommendation of 2 to 4 years in prison. Defendant was advised of themaximum sentence that could be imposed, acknowledged that County Court had made"NO PROMISES WHATSOEVER" with respect to sentencing and agreed to payrestitution in the amount of $5,500, as well as the 5% surcharge. Defendant thereafterwas sentenced, as a second felony offender, to 1½ to 3 years in prison—saidsentence to run consecutively to the sentence imposed upon the Greene Countyconviction (People v Leone,91 AD3d 981 [2012])—as well as the agreed-upon restitution and surcharge.Defendant appealed and his assigned counsel thereafter filed an Anders brief andmoved to be relieved as counsel. This Court rejected the Anders brief, withhelddecision and assigned new counsel (90 AD3d 1415 [2011]).
Initially, despite defendant's execution of a written waiver of the right to appeal, wecannot find that he knowingly, intelligently and voluntarily waived his right to appealbecause the [*2]record as a whole fails to demonstrate "afull appreciation of the consequences of such waiver" (People v Bradshaw, 18 NY3d257, 264 [2011] [internal quotation marks and citation omitted]). Turning todefendant's challenge to the voluntariness of his guilty plea, we find this claim to beunpreserved inasmuch as the record before us does not reflect that defendant moved towithdraw his plea or vacate the judgment of conviction (see People v Santana, 95AD3d 1503, 1503-1504 [2012]). Furthermore, given that "defendant made nostatements during the plea allocution that negated an element of the crime or otherwisecalled his guilt into question, this case does not fall within the narrow exception to thepreservation requirement" (People v Thomas, 81 AD3d 997, 998 [2011], lvdenied 16 NY3d 900 [2011]; see People v Santana, 95 AD3d at 1504).
Next, although defendant's claim that the sentence imposed was harsh and excessiveis properly before us, given all of the circumstances, including defendant's lengthycriminal history, "we find no extraordinary circumstances nor abuse of discretionwarranting a reduction of the sentence in the interest of justice" (People v Kime, 95 AD3d1562, 1563 [2012]). Finally, contrary to defendant's argument, inasmuch as he hadnot yet made restitution at the time of sentencing, County Court properlyimposed—as part of the sentence—both the agreed-upon restitution and themandatory surcharge (see People v Quinones, 95 NY2d 349, 352 [2000]; People v Salmans, 49 AD3d961, 962 [2008]).
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.