| People v Smith |
| 2013 NY Slip Op 08552 [112 AD3d 1232] |
| December 26, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesH. Smith, Sr., Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 22, 2012, convicting defendant upon his plea of guiltyof the crime of burglary in the third degree.
Defendant waived indictment and agreed to be prosecuted by a superior courtinformation charging him with burglary in the third degree. He thereafter pleaded guiltyto that crime in full satisfaction of this charge and other pending charges. As part of theplea agreement, defendant waived his right to appeal and agreed to pay restitution.County Court sentenced defendant, as a second felony offender, to a prison term of3½ to 7 years and ordered him to pay restitution in the amount of $1,146.18.Defendant appeals, and we affirm.
Initially, we reject defendant's contention that his waiver of the right to appeal wasinvalid, as the plea allocution and the counseled written waiver executed in open courtdemonstrate that he voluntarily, knowingly and intelligently waived the right to appealhis conviction and sentence (seePeople v Brown, 101 AD3d 1267, 1268 [2012], lv denied 21 NY3d1014 [2013]; People vJerome, 98 AD3d 1188, 1189 [2012], lv denied 20 NY3d 987 [2012]).His valid appeal waiver precludes his claim that County Court should have granted himjudicial diversion to a substance abuse treatment program (see People v Ivey, 79 AD3d1531, 1532 [2010], lv denied 16 NY3d 859 [2011]; see generally People v Lopez,6 NY3d 248, 255 [2006]).[*2]
Defendant's contention that his guilty plea wasnot knowing, voluntary and intelligent, which survives his appeal waiver, is notpreserved for our review, as the record does not reveal that he made a motion towithdraw the plea or vacate the judgment of conviction (see People v Gathers, 106AD3d 1333, 1334 [2013], lv denied 21 NY3d 1073 [2013]; People v Leone, 105 AD3d1249, 1250 [2013], lv denied 21 NY3d 1017 [2013]). Moreover, contrary todefendant's contention, the narrow exception to the preservation rule does not apply here"as defendant did not make any statements during the plea allocution that negated amaterial element of the crime or otherwise cast doubt upon [his] guilt" (People v Ladieu, 105 AD3d1265, 1266 [2013], lv denied 21 NY3d 1017 [2013]; see People v Teele, 92 AD3d972, 972 [2012]), and defendant "was not required to recite the elements of hiscrime or engage in a factual exposition, as his unequivocal affirmative responses toCounty Court's questions were sufficient to establish the elements of the crime charged"(People v Board, 75 AD3d833, 834 [2010]; accordPeople v Sanat, 108 AD3d 872, 872 [2013]). Finally, defendant's claim thatthere is a lack of support in the record for the amount of restitution ordered is alsounpreserved for our review in light of his failure to request a hearing or challenge theamount during sentencing (seePeople v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893[2010]; People v Melino,52 AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]).
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.