| People v Robinson |
| 2013 NY Slip Op 08737 [112 AD3d 1349] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EricD. Robinson, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Christopher Eaggleston ofcounsel), for respondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedMarch 8, 2011. The judgment convicted defendant, upon his plea of guilty, of attemptedassault in the second degree and driving while ability impaired by drugs.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of attempted assault in the second degree (Penal Law §§ 110.00,120.05 [3]) and driving while ability impaired by drugs (Vehicle and Traffic Law§ 1192 [4]). Contrary to defendant's contention, the record establishes that heknowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez,6 NY3d 248, 256 [2006]). The challenge by defendant to County Court'ssuppression ruling is encompassed by his valid waiver of the right to appeal (seePeople v Kemp, 94 NY2d 831, 833 [1999]; People v Goossens, 92 AD3d 1282, 1283 [2012], lvdenied 19 NY3d 960 [2012]). Although defendant's contention that his guilty pleawas not knowing, voluntary, or intelligent survives his valid waiver of the right toappeal, defendant did not move to withdraw the plea or to vacate the judgment ofconviction on that ground and thus failed to preserve that contention for our review (see People v Russell, 55 AD3d1314, 1314-1315 [2008], lv denied 11 NY3d 930 [2009]). Contrary todefendant's further contention, this case does not fall within the rare exception to thepreservation requirement because nothing in the plea allocution calls into question thevoluntariness of the plea or casts "significant doubt" upon his guilt (People vLopez, 71 NY2d 662, 666 [1988]; see People v Cubi, 104 AD3d 1225, 1226 [2013], lvdenied 21 NY3d 1003 [2013]).
To the extent that defendant's further contention that the court erred in denying hisapplication for a subpoena duces tecum survives the guilty plea and his valid waiver ofthe right to appeal (see generallyPeople v Morris, 94 AD3d 1450, 1451 [2012], lv denied 19 NY3d 976[2012]), we conclude that it lacks merit. Inasmuch as the records sought pertain solely tothe credibility of a witness, the court did not abuse its discretion in denying defendant'ssubpoena request (see People v Gissendanner, 48 NY2d 543, 548 [1979]; People v Scott, 60 AD3d1396, 1397 [2009], lv denied 12 NY3d 821 [2009]; People v Reddick, 43 AD3d1334, 1335 [2007], lv denied 10 NY3d 815 [2008]).
Although defendant's challenge to the amount of restitution " 'is not foreclosed by his[*2]waiver of the right to appeal because the amount ofrestitution was not included in the terms of the plea agreement' " (People v Tessitore, 101 AD3d1621, 1622 [2012], lv denied 20 NY3d 1104 [2013]), he failed to preservethat challenge for our review inasmuch as he did not object to the amount of restitution atsentencing or request a hearing on that issue (see People v Kirkland, 105 AD3d 1337, 1338-1339 [2013],lv denied 21 NY3d 1043 [2013]; People v Jorge N.T., 70 AD3d 1456, 1457 [2010], lvdenied 14 NY3d 889 [2010]). Indeed, defendant expressly consented to the amountof restitution at sentencing (seePeople v Harris, 31 AD3d 1194, 1195 [2006], lv denied 7 NY3d 848[2006]; People v Solerwitz, 172 AD2d 780, 781 [1991], lv denied 78NY2d 974 [1991]).
Finally, defendant failed to preserve for our review his contention that the court erredin imposing a collection surcharge of 10% of the amount of restitution (seeKirkland, 105 AD3d at 1338). In any event, Penal Law § 60.27 (8) providesthat a court must impose a surcharge of 5% of the amount of restitution and may imposean additional surcharge of up to 5% "[u]pon the filing of an affidavit of the official ororganization designated pursuant to [CPL 420.10 (8)] demonstrating that the actual costof the collection and administration of restitution or reparation in a particular caseexceeds five percent of the entire amount of the payment or the amount actuallycollected" (see Kirkland, 105 AD3d at 1338-1339) and, here, the record includessuch an affidavit. Present—Scudder, P.J., Smith, Peradotto, Lindley and Sconiers,JJ.