| People v Brasmeister |
| 2016 NY Slip Op 01019 [136 AD3d 1122] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAnthony E. Brasmeister, Appellant. |
Mark Diamond, Albany, for appellant.
James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Montgomery County (Hoye,J.), rendered July 11, 2013, convicting defendant upon his plea of guilty of the crime ofmurder in the second degree (two counts).
Defendant pleaded guilty to two counts of murder in the second degree and his pleaincluded a waiver of the right to appeal. County Court thereafter sentenced him to twoconcurrent prison terms of 25 years to life. County Court further ordered defendant topay restitution in the amount of $3,048.20. Defendant now appeals.
Contrary to defendant's contention, his responses during the plea allocutionconcerning his appeal waiver and his counseled, written waiver executed in open court,which adequately advised him that the right to appeal is separate and distinct from theother rights forfeited by a guilty plea, demonstrate that he knowingly, intelligently andvoluntarily waived the right to appeal his conviction and sentence (see People v Merrill, 123AD3d 1339, 1339 [2014], lv denied 26 NY3d 970 [2015]; People v Frasier, 105 AD3d1079, 1080 [2013], lv denied 22 NY3d 1088 [2014]; People v White, 96 AD3d1299, 1299-1300 [2012]). The valid waiver precludes review of his challenge to thesentence as harsh and excessive (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Galietta, 75 AD3d753, 754 [2010]; People vSchwickrath, 23 AD3d 707, 708 [2005]).
As to defendant's challenge to the imposition of restitution, this issue survives his[*2]appeal waiver (see People v Nugent, 31 AD3d 976, 978 [2006], lvdenied 8 NY3d 925 [2007]; People v Branch-El, 12 AD3d 785, 786 [2004], lvdenied 4 NY3d 761 [2005]). Inasmuch as the record fails to establish that payment ofrestitution was part of defendant's plea agreement, we must agree that County Court erredin imposing the enhanced sentence without giving defendant an opportunity to withdrawhis plea (see People vStrong, 124 AD3d 992, 992-993 [2015]; People v Culcleasure, 75 AD3d 832, 832 [2010];People v Branch-El, 12 AD3d at 786). Accordingly, defendant's sentence must bevacated and the matter remitted to County Court to either impose the agreed-uponsentence or give defendant the option of withdrawing his plea before imposing theenhanced sentence (see People v Strong, 124 AD3d at 993; People v Hulett, 117 AD3d1279, 1279 [2014]; People v Galietta, 75 AD3d at 754-755).
McCarthy, J.P., Garry and Devine, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the CountyCourt of Montgomery County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.