| People v Rubio |
| 2015 NY Slip Op 08468 [133 AD3d 1041] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vChristopher Rubio, Appellant. |
Cliff Gordon, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered December 19, 2013, convicting defendant upon his plea of guilty of thecrimes of burglary in the second degree and criminal possession of a weapon in thesecond degree.
In September 2013, defendant pleaded guilty to one count of burglary in the seconddegree and one count of criminal possession of a weapon in the second degree in fullsatisfaction of a seven-count indictment upon his admission that he, acting in concertwith another individual, entered a residence, stole five handguns and, thereafter,possessed a loaded handgun without permission or license to do so. In exchange for asentence of imprisonment of not less than seven years but no more than 10 yearsfollowed by five years of postrelease supervision, defendant agreed to sign a separate anddistinct waiver of appeal in open court. At sentencing, the People informed County Courtthat there was an insurance claim of $400 for damage to the homeowner's gun case and$2,400 for the stolen handguns. County Court sentenced defendant to a prison term of 10years, followed by five years of postrelease supervision, and imposed $2,800 inrestitution. Defendant appeals.
Initially, we reject defendant's assertion that County Court did not properly ensurethat defendant knowingly, voluntarily and intelligently waived his right to appeal. Areview of the plea minutes reveals that County Court explained to defendant that he waswaiving his right to appeal, that defendant explicitly waived his appeal rights withoutqualification during the allocution and that he was advised by the court that the appealwaiver was separate and distinct [*2]from those rightsthat he forfeited by his guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Spellicy, 123 AD3d1228, 1229 [2014], lv denied 25 NY3d 992 [2015]). Defendant alsoexecuted a written appeal waiver, which adequately described the scope of the appellaterights waived and which included defendant's acknowledgment that he was knowingly,voluntarily and intelligently waiving those rights after having been given sufficient timeto discuss the consequences of the waiver with counsel (see People v Tyler, 130 AD3d1383, 1384 [2015]; Peoplev Turner, 126 AD3d 1228, 1229 [2015]). Consequently, the valid waiverprecludes review of his challenge to the sentence as harsh and excessive (see People vLopez, 6 NY3d at 255-256; People v Jackson, 129 AD3d 1342, 1342 [2015]).
Next, defendant argues that, because the plea bargain did not include restitution,County Court erred in ordering restitution and in failing to conduct a restitution hearing.Preliminarily, under the circumstances presented, we note that neither defendant's appealwaiver (see People vSkerritt, 128 AD3d 1110, 1111 [2015]; People v Culcleasure, 75 AD3d 832, 832 [2010]; People v Thomas, 71 AD3d1231, 1232 [2010], lv denied 14 NY3d 893 [2010]; People v Travis, 64 AD3d808, 808 [2009]) nor his failure to preserve this issue through an objection atsentencing (see People v Culcleasure, 75 AD3d at 832; People v McDowell, 56 AD3d955, 956 [2008]; People vSnyder, 23 AD3d 761, 762-763 [2005]) is fatal to the claim. Turning to themerits, "[w]here . . . a plea agreement does not include mention ofrestitution, a defendant must be given the opportunity to either withdraw his [or her] pleaor accept the greater sentence of restitution" (People v Snyder, 23 AD3d at 762[internal quotation marks and citation omitted]; see People v McDowell, 56AD3d at 956). Here, a review of the plea colloquy and the sentencing minutes revealsthat no mention of restitution was made until the sentence was pronounced, and there isalso no evidence in the record to substantiate the amount of restitution requested by thePeople and awarded by the court (see Penal Law § 60.27 [2]; People v Stevens, 80 AD3d791, 792 [2011], lv denied 16 NY3d 900 [2011]; People v Travis, 64AD3d at 808-809). Indeed, defendant was first made aware that restitution would beimposed at sentencing when the People informed County Court that the victim receivedinsurance proceeds in the amount of $400 for damage to his firearm cabinet and $2,400for his stolen firearms. Accordingly, in light of County Court's failure to afford defendantthe opportunity to either withdraw his plea or accept the enhanced sentence of restitution,this matter must be remitted for that purpose (see People v Gantt, 63 AD3d 1379, 1380 [2009];People v McDowell, 56 AD3d at 956). Alternatively, the court may impose thesentence that was promised in the plea agreement (see People v Gantt, 63 AD3dat 1380; People v Snyder, 23 AD3d at 763). In the event that restitution isordered, defendant should be offered the opportunity of a hearing as to the appropriateamount (see People v Gantt, 63 AD3d at 1380; People v Sawyer, 55 AD3d949, 951-952 [2008]).
McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court ofSullivan County for further proceedings not inconsistent with this Court's decision; and,as so modified, affirmed.