| People v Lyman |
| 2014 NY Slip Op 04974 [119 AD3d 968] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1](July 3, 2014)
| 1 The People of the State of New York, Respondent, vRaymond Lyman, Appellant. |
John A. Cirando, Syracuse, for appellant.
Derek P. Champagne, District Attorney, Malone (Gary M. Pasqua of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered June 25, 2012, convicting defendant upon his plea of guilty ofthe crime of grand larceny in the fourth degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to grand larcenyin the fourth degree, admitting that he stole a rifle from his father's home that he knewbelonged to another person. During the plea colloquy, defendant also waived his right toappeal on the record, both verbally and in writing. He was promised a sentence of timeserved with five years of probation if he successfully completed substance abusetreatment, continued to test negative for prohibited substances, and followed allconditions of his interim release on probation. After defendant was discharged fromtreatment due to opiate use and failed to report for his presentence investigationinterview, County Court concluded that he had violated the terms of the plea agreementand imposed a prison sentence of 1 to 4 years, along with restitution in the amount of$500. Defendant now appeals, arguing that his guilty plea was involuntary and that thewaiver of his right to appeal was invalid. He further claims that County Court erred inordering restitution, and challenges the court's imposition of an enhanced sentence.
Initially, we reject defendant's claim that his appeal waiver was invalid. During theplea colloquy, County Court adequately explained the nature of the rights that defendantwas waiving, the appeal rights that he could not waive, and that the right to appeal isseparate and distinct from [*2]the rights automaticallyforfeited upon a plea of guilty (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d248, 256-257 [2006]). Defendant orally confirmed that he understood the rights thathe was relinquishing and that those rights were separate and distinct from the rightsforfeited as a result of his guilty plea (cf. People v Bradshaw, 18 NY3d at 267).Defendant also signed a detailed written waiver of appeal in open court that bothmirrored County Court's colloquy and indicated that defendant had been given sufficienttime to discuss the waiver with counsel and was proceeding knowingly, intentionally andvoluntarily. Therefore, contrary to defendant's contentions on appeal, County Court"carefully explained the appeal waiver and distinguished it from the other rights thatdefendant was forgoing as a consequence of his guilty plea, established that defensecounsel had discussed it with him . . . and did not mislead him as to the. . . scope of the appeal waiver" (People v Wolz, 112 AD3d 1150, 1152 [2013]; see People v Ramos, 7 NY3d737, 738 [2006]; People v Lopez, 6 NY3d at 256-257).
Inasmuch as County Court advised defendant of the plea conditions and the potentialconsequences of violating them, his contention that his enhanced sentence was harsh andexcessive is precluded by his valid waiver of the right to appeal (see People v Long, 117 AD3d1326, 1327 [2014]; cf.People v Bucknor, 116 AD3d 1233, 1234 n [2014]). Turning to defendant'sclaims that survive his appeal waiver, his argument that his plea was involuntary isunpreserved for our review because he failed to move to withdraw his plea, and thenarrow exception to the preservation requirement is inapplicable (see People v Watson, 115AD3d 1016, 1017 [2014]; People v Smith, 112 AD3d 1232, 1232-1233 [2013], lvdenied 22 NY3d 1203 [2014]). Defendant's assertion that County Court failed tomake an adequate inquiry into whether he violated the conditions of his plea lacks merit;the court conducted an adequate inquiry in which defendant was given an opportunity toexplain his discharge from treatment and his failure to appear for the presentenceinvestigation interview, and he admitted violating the plea conditions (see People v Mitchell, 112AD3d 992, 993-994 [2013]).
Although defendant's challenge to the amount of restitution ordered also survives hiswaiver because the plea agreement did not specify the amount to be awarded, the issue isunpreserved due to his failure to request a hearing or challenge the amount at sentencing(see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Smith, 112AD3d at 1233; People vHulett, 106 AD3d 1330, 1331 [2013], lv denied 22 NY3d 1139 [2014]).Nevertheless, the People concede in their brief, and we agree, that "the record does notcontain sufficient evidence to support [the] finding" with respect to the amount ofrestitution owed (Penal Law § 60.27 [2]) and, thus, we find this to be a casein which it is appropriate to exercise our discretion to take corrective action in theinterest of justice. Accordingly, we modify the judgment in the interest of justice andremit for the sole purpose of holding a hearing to establish restitution.
Lahtinen, J.P., Stein, Egan Jr. and Devine, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reversing so much thereofas ordered restitution; matter remitted to the County Court of St. Lawrence County forfurther proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.