| People v Miller |
| 2016 NY Slip Op 02483 [137 AD3d 1485] |
| March 31, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vChristopher Miller, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered April 17, 2014, convicting defendant upon his plea of guilty ofthe crime of larceny in the fourth degree.
Defendant pleaded guilty to the reduced charge of grand larceny in the fourth degreeand waived his right to appeal. County Court sentenced defendant as a second felonyoffender to a prison term of 2 to 4 years, ordered shock incarceration participation andimposed restitution. Defendant appeals.
Initially, we are unpersuaded by defendant's contention that his waiver of the right toappeal was not knowing, voluntary and intelligent. Review of the plea colloquy revealsthat County Court distinguished the right to appeal from the rights automatically forfeitedby the guilty plea, and defendant executed a written waiver of appeal in open court afterhe acknowledged that he understood the waiver of the right to appeal. Defendant's claimthat the sentence is harsh and excessive is thus precluded by the valid waiver of the rightto appeal (see People vBethea, 133 AD3d 1033, 1033 [2015]; People v Beblowski, 131 AD3d 1303, 1304 [2015], lvdenied 26 NY3d 1085 [2015]).
Defendant further argues that his plea was based upon an understanding that hewould serve a shorter prison term due to his anticipated participation in the shockincarceration program. As this claim challenges the voluntariness of the plea, it wouldsurvive his appeal [*2]waiver (see People v Benson, 100AD3d 1108, 1108-1109 [2012]). However, defendant notes in his brief that he is notseeking to withdraw or vacate his plea as involuntary, and his motion before CountyCourt to vacate the sentence on this ground was withdrawn. In any event, thedetermination as to whether to accept any particular individual into that program lieswithin the authority of the Department of Corrections and Community Supervision,rather than the court (see Peoplev Vanguilder, 32 AD3d 1110, 1110-1111 [2006], lv denied 7 NY3d 904[2006]; People v Taylor, 284 AD2d 573, 574 [2001], lv denied 96 NY2d925 [2001]).
Turning to defendant's challenge to the restitution imposed, the record clearly reflectsthat defendant was informed that restitution was part of the underlying plea agreement.Further, although his challenge to the amount of restitution imposed survives his validwaiver of appeal, it is unpreserved given his failure to request a hearing or otherwisecontest the amount of restitution imposed at sentencing (see People v Bethea, 133AD3d at 1034; People vMiller, 126 AD3d 1233, 1234 [2015], lv denied 25 NY3d 1168 [2015]),and we decline to exercise our interest of justice jurisdiction to take correctiveaction.
We do, however, find merit in defendant's contention that County Court improperlyordered him to sell his property in order to satisfy the restitution amount. Forfeiture ofproperty was not a condition of the plea agreement. Further, although the People assertthat the court was entitled to decree a forfeiture of defendant's property as part of thejudgment of conviction in accordance with Penal Law § 60.30, the recorddoes not reflect that any order or judgment of forfeiture was issued by the court or thatthe People complied with the civil forfeiture procedures set forth in CPLR article 13-A(see People v Carmichael,123 AD3d 1053, 1053 [2014]; People v McCoy, 96 AD3d 1674, 1675-1676 [2012]).
Peters, P.J., Rose, Lynch and Clark, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating that portion of the sentence as ordered defendant'sproperty sold, and, as so modified, affirmed.