| People v Villnave |
| 2014 NY Slip Op 03298 [117 AD3d 1178] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBradley J. Villnave, Appellant. |
Richard V. Manning, Parishville, for appellant.
Mary E. Rain, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 19, 2011, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the third degree.
Defendant pleaded guilty to a reduced charge of attempted burglary in the thirddegree in full satisfaction of an amended indictment charging him with multiple countsarising out of the theft of certain snowmobiles. County Court agreed to impose a prisonsentence of 2 to 4 years, direct restitution and recommend that defendant be enrolled in ashock incarceration program. Defendant was cautioned, however, that if he were toviolate the conditions of his release by, among other things, testing positive for anyillegal substances, the court would not be bound by its promise to recommend shockincarceration. When defendant later tested positive for cocaine use, County Courtsentenced him, as a second felony offender, to a prison term of 2 to 4 years, withoutrecommending the shock program, and directed him to pay restitution in the amount of$2,790. Defendant now appeals.[FN*]
[*2] We cannot agree with defendant's claim that thePeople's failure to timely file the amended indictment rendered it jurisdictionallydefective. Although CPL 210.20 (6) provides a 30-day period after entry of an orderreducing a count or counts of an indictment during which the People are authorized toexercise certain options, this time period acts as a stay intended to prevent anopportunistic defendant from "exercis[ing] the statutory right to plead guilty to thereduced indictment before the People had a fair chance to respond" (People vJackson, 87 NY2d 782, 787 [1996]). The People's filing of the reduced indictment33 days after County Court's order does not render the indictment jurisdictionallydefective inasmuch as the failure to take any action within 30 days results only in therequirement that the People file the reduced indictment (see People v Jackson, 87NY2d at 789).
Defendant next argues that he did not agree to the conditions of his release. Thisargument is unpreserved for our review, however, given defendant's failure to make anappropriate postallocution motion (see People v Lewis, 98 AD3d 1186, 1186 [2012]). In anyevent, County Court retained "discretion in overseeing and approving [the] plea bargain[], including the imposition of conditions" (People v Avery, 85 NY2d 503, 507[1995]). County Court fully advised defendant that it would not be bound by itssentencing promise if he tested positive for drugs prior to sentencing, defendant failed toobject to that condition and he subsequently tested positive for cocaine. Given thecircumstances, we find no abuse of discretion in County Court's refusal to recommenddefendant's placement in a shock incarceration program (see People v Smith, 100 AD3d1102, 1103 [2012]; People v Augustine, 265 AD2d 671, 672 [1999]).
Nor do we find that County Court abused its discretion in refusing to recuse itselffrom presiding over defendant's sentencing based on comments the court had made at acodefendant's earlier sentencing. The comments were derived from knowledge obtainedwithin the criminal action against defendant—namely, his criminal history and thefact that he had involved his codefendant in a criminal scheme—and they do notsuggest any impermissible bias against defendant (see People v Moreno, 70NY2d 403, 405-406 [1987]; Burke v Carrion, 101 AD3d 920, 921 [2012]; People v Shultis, 61 AD3d1116, 1117 [2009], lv denied 12 NY3d 929 [2009]). Finally, becausedefendant failed to request a restitution hearing or challenge the amount set by CountyCourt, his argument that the amount was unsupported by the evidence is unpreserved (see People v Smith, 112 AD3d1232, 1233 [2013]; Peoplev Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893[2010]). Were we to consider this argument, we would find that it lacks merit.
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendantagreed to waive his right to appeal as part of the plea agreement, the People correctlyconcede that such waiver is unenforceable here "given that he was not advised that it wasa right separate and distinct from the other rights that he was forfeiting by pleadingguilty" (People v Bressard,112 AD3d 988, 988 [2013], lv denied 22 NY3d 1137 [2014]).