| People v Durham |
| 2013 NY Slip Op 06738 [110 AD3d 1145] |
| October 17, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vKenneth C. Durham, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 19, 2011, convicting defendant upon his plea of guilty ofthe crime of attempted assault in the first degree.
Defendant was charged in an indictment with various crimes after an infant under hiscare sustained serious injuries, including brain damage. In satisfaction thereof, hepleaded guilty to attempted assault in the first degree and waived his right to appeal bothorally and in writing. In accordance with the terms of the plea agreement, defendant wassentenced as a second felony offender to 15 years in prison, to be followed by five yearsof postrelease supervision. In addition, he was ordered to pay restitution. Defendant nowappeals.
Initially, defendant's challenge to the factual sufficiency of his guilty plea isprecluded by his valid waiver of the right to appeal and is also unpreserved for ourreview inasmuch as the record does not indicate that he moved to withdraw his plea orvacate the judgment of conviction (see People v Frank, 100 AD3d 1145, 1146 [2012]; People v Harris, 51 AD3d1335, 1336 [2008], lv denied 11 NY3d 789 [2008]). Contrary to defendant'sclaim, the transcript of the plea proceeding does not reveal that he made statementsnegating essential elements of the crime or that otherwise cast doubt upon his guilt suchas to compel County Court to conduct a further inquiry (see People v Van Bramer, 26AD3d 672, 673 [2006], lv denied 7 NY3d 764 [2006]). Defendant'schallenge to the severity of the sentence is likewise foreclosed by his valid appeal waiver(see People v Walker, 47AD3d 965, 966 [2008]; People v Nesbitt, 23 AD3d 836, 837[*2][2005], lv denied 6 NY3d 816 [2006]).
Insofar as the record discloses that County Court initially ordered defendant to payrestitution yet failed to set forth the time and manner of such payment, we modify thejudgment by vacating the restitution order and remitting for such purpose (see Peoplev Dickson, 260 AD2d 931, 934 [1999], lv denied 93 NY2d 1017 [1999];People v Dixon, 156 AD2d 976, 976 [1989]).
Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is modified, on thelaw, by reversing so much thereof as failed to set forth the time and manner by whichrestitution is to be made; matter remitted to the County Court of St. Lawrence County forfurther proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.