| People v Lucieer |
| 2013 NY Slip Op 04534 [107 AD3d 1611] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Terrance F. Lucieer, Appellant. (Appeal No.1.) |
—[*1] Gregory S. Oakes, District Attorney, Oswego, for respondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered March 24, 2011. The judgment convicted defendant, upon his plea of guilty, ofgrand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him,upon his plea of guilty, of grand larceny in the fourth degree (Penal Law § 155.30[1]). In appeal No. 2, defendant appeals from a judgment entered the same day as thejudgment in appeal No. 1, revoking the sentence of probation imposed upon a previousconviction of grand larceny in the fourth degree (id.), based upon his admittedviolation of probation, and sentencing him to a term of incarceration. We rejectdefendant's contention that the waiver of the right to appeal is invalid. County Court"made clear that the waiver of the right to appeal was a condition of [the] plea, not aconsequence thereof, and the record reflects that defendant understood that the waiver ofthe right to appeal was 'separate and distinct from those rights automatically forfeitedupon a plea of guilty' " (Peoplev Graham, 77 AD3d 1439, 1439 [2010], lv denied 15 NY3d 920 [2010],quoting People v Lopez, 6NY3d 248, 256 [2006]).
The contention of defendant in appeal No. 1 that he was denied effective assistanceof counsel because his attorney failed to pursue an allegedly meritorious speedy trialmotion does not survive his plea and valid waiver of the right to appeal inasmuch asdefendant "failed to demonstrate that the plea bargaining process was infected by [the]allegedly ineffective assistance or that defendant entered the plea because of [defensecounsel's] allegedly poor performance" (People v Paduano, 84 AD3d 1730, 1731 [2011] [internalquotation marks omitted]; seePeople v Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20 NY3d1104 [2013]; People vSperanza, 96 AD3d 1164, 1165 [2012]). In any event, defendant did not have ameritorious speedy trial claim inasmuch as the People demonstrated "sufficientexcludable time" to establish compliance with CPL 30.30 (People v Kendzia, 64NY2d 331, 338 [1985]; seePeople v Walker, 27 AD3d 899, 900 [2006], lv denied 7 NY3d 764[2006]; see generally People vSweet, 79 AD3d 1772 [2010]). Defense counsel therefore "was not ineffectivein failing to pursue a motion that had no chance of success" (People v Rivers, 67[*2]AD3d 1435, 1436 [2009], lv denied 14 NY3d773 [2010], reconsideration denied 14 NY3d 892 [2010]; see People v Caban, 5 NY3d143, 152 [2005]).
Defendant further contends that the court erred in ordering restitution based in parton the replacement cost, rather than the fair market value, of the stolen property.Although "[d]efendant's challenge to the amount of restitution is not foreclosed by hiswaiver of the right to appeal because the amount of restitution was not included in theterms of the plea agreement" (People v Tessitore, 101 AD3d 1621, 1622 [2012], lvdenied 20 NY3d 1104 [2013] [internal quotation marks omitted]; see People v Miller, 87 AD3d1303, 1304 [2011], lv denied 18 NY3d 926 [2012]), that contention isunpreserved for our review inasmuch as defendant did not object to the victim's valuationtestimony or otherwise alert the sentencing court to his objection (see CPL470.05 [2]). In any event, we conclude that the People established the amount ofrestitution by a preponderance of the evidence, and there is no basis to disturb therestitution award (see CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221-222 [2007]; People v LaVilla, 87 AD3d1369, 1369-1370 [2011]; see generally People v Periard, 15 AD3d 693, 694 [2005]).
Finally, defendant's valid waiver of the right to appeal encompasses his contention inboth appeals that the sentence imposed pursuant to the plea agreement is unduly harshand severe (see People vRodman, 104 AD3d 1186, 1188 [2013]; Tessitore, 101 AD3d at1621-1622; see generally Lopez, 6 NY3d at 255-256). Present—Centra,J.P., Peradotto, Sconiers, Valentino and Whalen, JJ.