| People v Miller |
| 2015 NY Slip Op 02518 [126 AD3d 1233] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPerry L. Miller, Appellant. |
Joseph Nalli, Fort Plain, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter Willis of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered January 23, 2013, convicting defendant upon his plea of guilty ofthe crime of manslaughter in the first degree.
Defendant was charged with various crimes in connection with the stabbing death ofthe female victim. Pursuant to a plea agreement, defendant pleaded guilty tomanslaughter in the first degree in full satisfaction of the charges and waived his right toappeal. Defendant thereafter moved to withdraw his plea, contending that it was notvoluntarily entered because counsel did not fully advise him regarding a justificationdefense or inform him that the crime charged required an intent to cause serious physicalinjury. County Court denied the motion without a hearing and thereafter sentenceddefendant, as a second felony offender, to 20 years in prison, to be followed by five yearsof postrelease supervision. Defendant was also required to pay restitution in the amountof $8,010 to cover the cost of the victim's funeral. Defendant now appeals.
We affirm. Initially, we reject defendant's contention that his waiver of the right toappeal was invalid. The record reflects that County Court distinguished the right toappeal from the rights automatically forfeited upon a guilty plea and defendant stated thathe understood and was relinquishing the right voluntarily. He thereafter executed acounseled written waiver of appeal. As such, we are satisfied that defendant validlywaived the right to appeal his conviction [*2]andsentence (see People vChavis, 117 AD3d 1193, 1193-1194 [2014]; People v Marshall, 108 AD3d 884, 884 [2013], lvdenied 22 NY3d 957 [2013]). In light of his valid appeal waiver, defendant's claimthat his sentence is harsh and excessive is precluded from our review (see People v White, 119 AD3d1286, 1287 [2014], lv denied 24 NY3d 1222 [2015]; People v Fligger, 117 AD3d1343, 1344 [2014], lv denied 23 NY3d 1061 [2014]).
Defendant's contention that his plea was not knowingly, intelligently or voluntarilyentered because he was not informed of the specific amount of restitution at the time ofthe plea is unpreserved for our review given his failure to make a proper postallocutionmotion on that ground (seePeople v O'Neill, 116 AD3d 1240, 1241 [2014]; People v Small, 82 AD3d1451, 1452 [2011], lv denied 17 NY3d 801 [2011]), and the narrowexception to the preservation rule is not implicated (see People v Lopez, 71NY2d 662, 665-666 [1988]). Moreover, his challenge to the propriety of the award ofrestitution is also unpreserved for our review, in light of his failure to request a restitutionhearing or object to the amount awarded at sentencing (see People v Ortolaza, 120AD3d 843, 844 [2014]; People v Bressard, 112 AD3d 988, 989 [2013], lvdenied 22 NY3d 1137 [2014]).
Defendant's claim that his guilty plea was not voluntarily entered, due to counsel'sfailure to advise him as to the People's burden in the context of a justification defenseand that the crime charged required an intent to cause serious physical injury, surviveshis appeal waiver and has been preserved by his motion to withdraw his plea (see People v Morey, 110 AD3d1378, 1379 [2013], lv denied 23 NY3d 965 [2014]; People v Wyant, 47 AD3d1068, 1069 [2008], lv denied 10 NY3d 873 [2008]). The record reflects thatcounsel did discuss a possible justification defense with defendant, and County Courtconfirmed that defendant understood that, by pleading guilty, he was giving up his rightto make the People "meet their burden to prove charges beyond a reasonable doubt" andthat he was "giving up [his] right to present any defenses that you may have with respectto this charge." Moreover, prior to accepting the guilty plea, County Court inquiredwhether defendant was acting "with intent to cause serious physical injury to anotherperson" when he stabbed the victim and defendant answered in the affirmative.Accordingly, defendant has not demonstrated that he was prejudiced by the alleged errors(see People v Mercer, 105AD3d 1091, 1093-1094 [2013], lv denied 21 NY3d 1017 [2013]; Peoplev Kreydatus, 305 AD2d 935, 936 [2003], lv denied 100 NY2d 595 [2003]).Defendant's remaining contentions have been examined and found to be lacking inmerit.
Peters, P.J., Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed.