| People v Boatman |
| 2013 NY Slip Op 06467 [110 AD3d 1463] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LyleL. Boatman, 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 May 28, 2010. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the surcharge and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his guilty plea of two counts of attempted criminal possession of a controlledsubstance in the third degree (Penal Law §§ 110.00, 220.16 [1]) and, inappeal No. 2, he appeals from a judgment revoking the sentence of probation imposedupon his previous conviction of criminal possession of a weapon in the third degree(§ 265.02 [1]) and sentencing him to an indeterminate term of incarceration. Inboth appeals, defendant contends that his waiver of the right to appeal was invalid on theground that County Court conflated the right to appeal with the rights automaticallyforfeited upon a plea of guilty. We reject that contention. The record establishes that thecourt, in the plea colloquy, properly " 'describ[ed] the nature of the right being waivedwithout lumping that right into the panoply of trial rights automatically forfeited uponpleading guilty' " (People vTabb, 81 AD3d 1322, 1322 [2011], lv denied 16 NY3d 900 [2011],quoting People v Lopez, 6NY3d 248, 257 [2006]; seePeople v Harris, 94 AD3d 1484, 1485 [2012], lv denied 19 NY3d 961[2012]). Defendant's waiver of the right to appeal is therefore valid, and that waiverencompasses his challenge to the severity of the sentence in each appeal (seeLopez, 6 NY3d at 256; Harris, 94 AD3d at 1485; see also People v Gordon, 43AD3d 1330, 1331 [2007], lv denied 9 NY3d 1006 [2007]).
Conversely, with respect to appeal No. 1, "[d]efendant's waiver of the right to appealdoes not foreclose his [contention] that the restitution portion of the sentence was illegal"(People v Pump, 67 AD3d1041, 1042 [2009], lv denied 13 NY3d 941 [2010]; see also People v Stachnik,101 AD3d 1590, 1592 [2012], lv denied 20 NY3d 1104 [2013]) and, basedupon "the 'essential nature' of the right to be sentenced as provided by law," we reviewthat contention notwithstanding defendant's failure to raise it at sentencing (People vFuller, 57 NY2d 152, 156 [1982]; see People v McCarthy, 83 AD3d 1533, 1534-1535 [2011],lv denied 17 NY3d 819 [2011]). Contrary to defendant's contention, however,[*2]a defendant convicted of, inter alia, a class C " 'felonyinvolving the sale of a controlled substance' may be ordered to repay a law enforcementagency 'the amount of funds expended in the actual purchase' of a controlled substance"(People v Diallo, 88 AD3d1152, 1154 [2011], lv denied 18 NY3d 993 [2012], quoting Penal Law§ 60.27 [9]). Section 60.27 (9) was amended in 1991 "to authorize restitution tolaw enforcement agencies for unrecovered funds utilized to purchase narcotics as part ofinvestigations leading to convictions" (People v Logan, 185 AD2d 994, 995[1992]). We therefore conclude in appeal No. 1 that the court properly directed defendantto pay restitution to the City of Oswego Police Department for the funds it expended inbuying drugs from him.
The People correctly concede with respect to defendant's further contention in appealNo. 1 that the court erred in imposing a surcharge on that restitution order. Penal Law§ 60.27 (9) further provides that "[a]ny restitution which may be required to bemade to a law enforcement agency pursuant to this section . . . shall notinclude a designated surcharge." We therefore modify the judgment in appeal No. 1 byvacating the surcharge imposed. Present—Smith, J.P., Peradotto, Carni andLindley, JJ.