| People v Williams |
| 2014 NY Slip Op 05908 [120 AD3d 721] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sharon Y. Williams, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant, andappellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel),for respondent.
Appeals by the defendant from two judgments of the County Court, Suffolk County(Braslow, J.), both rendered March 21, 2012, convicting her of grand larceny in thesecond degree under indictment No. 735-11, and forgery in the second degree (twocounts) under superior court information No. 2965-11, upon her pleas of guilty, andimposing sentences.
Ordered that the judgment under indictment No. 735-11 is affirmed; and it isfurther,
Ordered that the judgment under superior court information No. 2965-11 ismodified, as a matter of discretion in the interest of justice, by vacating the provisions ofthe sentence directing the defendant to make restitution in a certain sum; as so modified,that judgment is affirmed.
In August 2011, the defendant was convicted of grand larceny in the second degree(Penal Law § 155.40) under indictment No. 735-11, upon her plea of guilty.The plea agreement called for a sentence not to exceed an indeterminate term ofimprisonment of four to eight years, and the defendant's payment of restitution not toexceed a certain amount. The defendant was also adjudicated a second felony offender.While awaiting sentencing on that conviction, the defendant committed further crimes. InDecember 2011, she waived her right to be prosecuted by indictment and was arraignedon superior court information No. 2965-11. The defendant pleaded guilty under thatsuperior court information to two counts of forgery in the second degree (Penal Law§ 170.10), and she was promised a specific total aggregate sentence. InMarch 2012, at the outset of the sentencing proceeding on both accusatory instruments,the defendant was notified that the County Court intended to impose an enhanced prisonterm and an enhanced amount of restitution on the conviction under indictment No.735-11. The enhancements were specified. Upon being given an opportunity to addressthe court, neither the defendant nor defense counsel objected to the enhancements. Thecourt then sentenced the defendant on the convictions under both accusatory instrumentsas a second felony offender. Under superior court information No. 2965-11, thedefendant was sentenced to prison terms consistent with the plea agreement, but she wasalso ordered to pay restitution, notwithstanding that restitution was not part of the pleaagreement under that accusatory instrument.
[*2] On appeal, the defendant raises numerous contentions with respect to thejudgments. Initially, as the defendant correctly contends, she did not validly waive herright to appeal, inasmuch as the record fails to demonstrate that the defendant was madeaware of the meaning of the right to appeal (see People v Bradshaw, 18 NY3d 257, 265 [2011]).
Turning to the merits, in connection with the conviction under indictment No.735-11, the defendant was required to timely object to the court's imposition ofrestitution in order to preserve for appellate review her challenge thereto, since restitutionwas expressly made a part of the plea agreement (see People v Jerome, 110 AD3d 739, 740 [2013]). Thedefendant was also required to timely object to the court's imposition of an enhancedterm of imprisonment to the extent that the enhancement was based on her violation ofcertain conditions of the plea agreement (see People v Browning, 44 AD3d 1067 [2007]). Thedefendant's contentions with respect to these two issues are unpreserved for appellatereview (see People vMcAlpin, 17 NY3d 936, 938 [2011]; People v Joy, 114 AD3d 809, 809 [2014]; People v Totesau, 112 AD3d977, 978-979 [2013]; People v Woods, 110 AD3d 748, 748 [2013]; People vJerome, 110 AD3d at 740), and we decline to reach them in the exercise of ourinterest of justice jurisdiction.
The preservation requirement does not apply to the defendant's contention that shewas improperly sentenced as a second felony offender on her conviction of grand larcenyin the second degree under indictment No. 735-11, since the defendant is essentiallychallenging the lawfulness of her sentence, and the facts underlying this contentionappear on the face of the record (see People v Samms, 95 NY2d 52, 56-57[2000]). Nonetheless, the defendant's contention in this regard is without merit, as therecord demonstrates that the predicate offense was committed within the 10-year "lookback" period of Penal Law § 70.06 (1) (b) (iv) and (v).
The preservation requirement does apply to the defendant's contention that she wasimproperly sentenced as a second felony offender on her convictions under superiorcourt information No. 2965-11, since the facts underlying her contention in this regarddo not appear on the face of the record (see People v Nieves, 2 NY3d 310, 315 [2004]; cf.People v Samms, 95 NY2d at 58; People v Stanley, 12 AD3d 467, 467 [2004]). Here, thedefendant failed to preserve for appellate review her contention that she was improperlysentenced as a second felony offender on her convictions under superior courtinformation No. 2965-11, inasmuch as she did not object to the court's adjudication ofher as a second felony offender in connection with that accusatory instrument, and wedecline to reach that contention in the exercise of our interest of justice jurisdiction.
The defendant likewise did not preserve for appellate review her contention that theCounty Court erred in ordering her to make restitution on the conviction under superiorcourt information No. 2965-11 (see People v Murray, 15 NY3d 725, 726 [2010]; cf. People v McAlpin, 17NY3d 936, 938 [2011]), but we reach that contention in the exercise of our interestof justice jurisdiction. A court may not impose restitution when restitution is not part ofthe plea agreement unless it first gives the defendant an opportunity to withdraw the pleaof guilty (see People vPettress, 109 AD3d 555, 555-556 [2013]; People v Esquivel, 100 AD3d 652, 652 [2012]; People v Gibson, 88 AD3d1012, 1012 [2011]; Peoplev Kegel, 55 AD3d 625, 625 [2008]). Unlike the plea agreement made inconnection with the criminal action prosecuted under indictment No. 735-11, thedefendant was never informed that restitution would be part of the plea agreement undersuperior court information No. 2965-11. Accordingly, the court improperly imposedrestitution in that case without first giving the defendant an opportunity to withdraw herplea of guilty. The parties agree that the judgment entered under superior courtinformation No. 2965-11 should be modified by deleting the provision regardingrestitution, and we deem it appropriate to do so in the interest of justice (see People v Thompson, 105AD3d 1067, 1067 [2013]).
The defendant's claim of ineffective assistance of counsel is based in part on matteron the record and in part on matter dehors the record and, thus, constitutes a" 'mixed claim[ ]' " of ineffective assistance (People v Maxwell, 89 AD3d1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011]). In thiscase, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (see People v Addison, 107 AD3d 730, 732 [2013]; cf.People v Crump, 53 NY2d 824 [1981]). Since the defendant's claim of ineffectiveassistance of [*3]counsel cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forumfor reviewing the claim in its entirety (see People v Addison, 107 AD3d at 732;People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant failed to preserve for appellate review her contention that hersentences constituted cruel and unusual punishment (see People v Gil, 109 AD3d 484, 485 [2013]), and therecord does not permit a full evaluation of the grounds on which the defendant bases thiscontention. We decline to reach the contention in the exercise of our interest of justicejurisdiction. Contrary to the People's contention, a contention that a sentence wasexcessive is not subject to preservation requirements. A claim that a sentence is excessiveis, by definition (see CPL 470.15 [6] [b]), addressed to this Court's interest ofjustice jurisdiction, and does not need to be preserved as a question of law (cf.CPL 470.05 [2]; CPL 470.15 [4]). Nonetheless, the sentences imposed were notexcessive (see People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Balkin,Dickerson and Cohen, JJ., concur.