| People v Bressard |
| 2013 NY Slip Op 08146 [112 AD3d 988] |
| December 5, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidBressard, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered September 6, 2011, convicting defendant upon his plea of guiltyof the crime of robbery in the second degree (two counts).
Defendant was charged in two separate indictments with various crimes resultingfrom his involvement in two armed robberies. In satisfaction of these and other pendingcharges, defendant pleaded guilty to two counts of robbery in the second degree andagreed to waive his right to appeal. In accordance with the plea agreement, he wassentenced to concurrent terms of eight years in prison, to be followed by five years ofpostrelease supervision, and was ordered to pay restitution in the amount of $750.Defendant now appeals.
Initially, upon reviewing the record, we find that defendant's waiver of the right toappeal is invalid given that he was not advised that it was a right separate and distinctfrom the other rights that he was forfeiting by pleading guilty (see People v Lopez, 6 NY3d248, 256 [2006]; see alsoPeople v Bradshaw, 18 NY3d 257, 264 [2011]; People v Ladieu, 105 AD3d1265, 1265 [2013], lv denied 21 NY3d 1017 [2013]; People v Veras, 103 AD3d984, 985 [2013], lv denied 21 NY3d 947 [2013]). Addressing defendant'schallenge to the voluntariness of his guilty plea, it is unpreserved because the record failsto indicate that he moved to withdraw his [*2]plea orvacate the judgment of conviction (see People v Ladieu, 105 AD3d at 1266; People v Leone, 105 AD3d1249, 1250 [2013], lv denied 21 NY3d 1017 [2013]; People v Revette, 102 AD3d1065, 1065-1066 [2013]). Notably, we find that the narrow exception to thepreservation rule is inapplicable, inasmuch as defendant did not make any statementsduring the plea colloquy that cast doubt upon his guilt or called into question thevoluntariness of his plea (see People v Lopez, 71 NY2d 662, 666-667 [1988];People v Ladieu, 105 AD3d at 1266; People v Leone, 105 AD3d at 1250;People v Revette, 102 AD3d at 1066).
Defendant's further challenge to the propriety of County Court's award of restitutionis also unpreserved given his failure to request a restitution hearing or otherwise contestthe amount of the restitution awarded at sentencing (see People v Hulett, 106 AD3d 1330, 1331 [2013]; People v Secore, 102 AD3d1057, 1058-1059 [2013], lv denied 21 NY3d 1019 [2013]; see alsoPeople v Horne, 97 NY2d 404, 410, 414, 414 n 3 [2002]). While his challenge to theseverity of the sentence is properly before us, we find it to be unavailing. Consideringdefendant's lengthy criminal history, the seriousness of his actions and the number ofother charges satisfied by defendant's plea, we find no extraordinary circumstances orabuse of discretion warranting a reduction of the sentence in the interest of justice(see People v Leone, 105 AD3d at 1250; People v Salmans, 49 AD3d 961, 961 [2008]; People v McCarthy, 23 AD3d919, 919-920 [2005]).
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.