| People v Finnegan |
| 2013 NY Slip Op 08457 [112 AD3d 847] |
| December 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Brendan Finnegan, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup andAndrew R. Kass of counsel), for respondent.
Appeals by the defendant from two judgments of the County Court, Orange County(Berry, J.), both rendered January 24, 2011, convicting him of burglary in the seconddegree under indictment No. 2010-694, and burglary in the second degree under superiorcourt information No. 2010-764, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
On the day the defendant pleaded guilty, the County Court told him that a conditionof the plea agreement was that he waive his right to appeal. However, the County Courtdid not explain the right to appeal until the date the defendant was sentenced, almost twomonths after the defendant pleaded guilty, and only after the sentences were actuallypronounced. In addition, the defendant's written waiver of the right to appeal wasexecuted after the pronouncement of the sentences. These circumstances do not establishthat the defendant knowingly, voluntarily, and intelligently agreed to waive his right toappeal as a condition of his pleas of guilty (see People v Gil, 109 AD3d 484 [2013]). Accordingly, theappeal waiver may not be enforced (see id. at 485; see also People v Bradshaw,18 NY3d 257, 265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]).
Contrary to the defendant's contention, the record shows that he entered a validwaiver of indictment, and freely and voluntarily consented to prosecution by superiorcourt information (see People vMays, 84 AD3d 1269 [2011]; People v McKenzie, 51 AD3d 823 [2008]).
The defendant's contention that the County Court failed to conduct a hearing todetermine the amount of restitution imposed is unpreserved for appellate review, sincethe defendant failed to request a hearing or otherwise challenge the amount of restitutionimposed at sentencing (seePeople v Sanchez, 103 AD3d 819, 820 [2013]; People v Baxter, 102 AD3d805, 806 [2013]), and we decline to review it in the exercise of our interest of justicejurisdiction (see People vFields, 101 AD3d 1043 [2012]; People v Haylett, 100 AD3d 774 [2012]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Skelos, Chambers and Hall, JJ., concur.