| People v Hall |
| 2016 NY Slip Op 00546 [135 AD3d 1246] |
| January 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMatthew J. Hall, Appellant. |
Matthew J. Hall, Malone, appellant pro se.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. ofcounsel), for respondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Essex County(Meyer, J.), rendered May 16, 2014, convicting defendant on his plea of guilty of thecrime of grand larceny in the second degree, and (2) by permission, from an order of saidcourt, entered December 24, 2014, which denied defendant's motion pursuant to CPL440.20 to set aside the sentence, without a hearing.
Pursuant to a written plea agreement, defendant waived indictment and entered aguilty plea to grand larceny in the second degree as charged in a superior courtinformation. The charge stemmed from defendant's theft of cash from his employer andtwo of its customers between 2006 and 2012. Under the terms of the plea agreement,defendant waived his right to appeal and agreed to pay restitution in the amount of$143,895.75; sentencing was left to the discretion of County Court. The court thereafterimposed a prison sentence of 5 to 15 years and ordered that defendant pay theagreed-upon restitution, with a surcharge. Defendant's subsequent motion to set aside thesentence pursuant to CPL 440.20 was denied, without a hearing. Defendant now appealsfrom both the judgment of conviction and, by permission, from the order denying hisCPL 440.20 motion.
We affirm. Defendant's claim that the sentence imposed is harsh and excessive isprecluded by his unchallenged oral and written waiver of appeal (see People v Smalls, 128 AD3d1281, 1282 [2015]). With regard to the amount of restitution imposed, defendantexpressly [*2]consented to pay the specified amount aspart of the plea agreement and waived his right to a hearing; hence, any challenge to theamount ordered is both precluded by his appeal waiver and unpreserved for our review(see People v Campo, 125AD3d 1058, 1059 [2015], lv denied 25 NY3d 1070 [2015]).
Defendant further argues that his motion pursuant to CPL 440.20 to set aside hissentence should have been granted because County Court imposed an impermissibleamount of restitution without permitting him to withdraw his plea and, further, imposed asurcharge that was not included in the terms of the plea agreement.[FN*] With regard to the$15,000 statutory cap on restitution, it applies "[e]xcept upon consent of the defendant"(Penal Law § 60.27 [5] [a]). Here, as part of the plea agreement, defendantexpressly agreed to the pay restitution and consented to the amount ordered after beingadvised of the cap and, thus, the restitution order did not violate Penal Law§ 60.27 (5) (a). We similarly reject defendant's contention that the surchargeimposed on the restitution amount was illegal and violated the plea agreement, as asurcharge is mandatory under Penal Law § 60.27 (8). Further, given theaffidavit submitted by the Acting Director of the Essex County Probation Departmentregarding the additional costs associated with administering this restitution order, a 10%surcharge was authorized by Penal Law § 60.27 (8) (see People v Pratt, 77 AD3d1337, 1337-1338 [2010], lv denied 15 NY3d 955 [2010]; comparePeople v Rawdon, 296 AD2d 599, 600 [2002], lv denied 98 NY2d 771[2002]). Finally, contrary to defendant's claim, it is "not require[d] that a defendant beadvised, prior to his or her plea, that the statutory surcharge is a part of the sentence" (People v Passino, 104 AD3d1060, 1061 [2013], lv denied 22 NY3d 1157 [2014] [internal quotationmarks and citations omitted]). Accordingly, defendant's motion to set aside the sentencewas properly denied without a hearing (see CPL 440.30 [4]).
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:Defendant did not moveto withdraw his guilty plea.