| People v Goldman |
| 2016 NY Slip Op 03553 [139 AD3d 1111] |
| May 5, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGeoffrey S. Goldman, Appellant. |
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
Eric T. Schneiderman, Attorney General, New York City (Margaret A. Cieprisz ofcounsel), for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered December 5, 2011, convicting defendant upon his plea of guilty of thecrimes of grand larceny in the second degree and scheme to defraud in the firstdegree.
In satisfaction of a superior court information, defendant waived indictment andpleaded guilty to grand larceny in the second degree and scheme to defraud in the firstdegree. Defendant also waived his right to appeal the conviction and sentence, exceptwith regard to the amount of restitution imposed. County Court, in accordance with theplea agreement, imposed an aggregate prison term of 4 to 12 years. The court alsoordered restitution in the amount of $5,687,944.06. This appeal ensued.
Contrary to defendant's contention, we find that he knowingly, voluntarily andintelligently waived his right to appeal. During the plea colloquy, defendant confirmedhis understanding that the right to appeal is separate and distinct from those rightsautomatically given up by the guilty plea, and he waived his right to appeal both theconviction and sentence imposed with a limited exception allowing him to appeal solelythe amount of restitution. Defendant's appeal waiver is, therefore, valid (see People v Phipps, 127AD3d 1500, 1501 [2015], lv denied 26 NY3d 970 [2015]; People v Morey, 110 AD3d1378, 1378-1379 [2013], lv denied 23 NY3d 965 [2014]). As such,defendant's challenges to the sufficiency of the plea allocution and the sentence as harshand excessive are precluded (seePeople v Jackson, 128 AD3d 1279, 1280 [2015], lv denied 26 NY3d930 [2015]; People vBryant, 128 AD3d 1223, [*2]1224-1225 [2015],lv denied 26 NY3d 926 [2015]).
While defendant's challenge to the voluntariness of his plea survives his waiver ofthe right to appeal, it is nevertheless unpreserved for our review as the record does notreflect that defendant made a postallocution motion in this regard (see People vSeaberg, 74 NY2d 1, 10 [1989]; People v Toback, 125 AD3d 1060, 1061 [2015], lvdenied 25 NY3d 993 [2015]). Further, the narrow exception to the preservationrequirement is not implicated here as defendant made no statements during the pleacolloquy that cast doubt on his guilt (see People v Lopez, 71 NY2d 662, 665-666[1988]; People v Garry, 133AD3d 1039, 1039-1040 [2015]; People v Lyman, 119 AD3d 968, 970 [2014]; People v Taylor, 89 AD3d1143, 1144 [2011]).
Although defendant's assertion that he was denied the effective assistance of counselsurvives his appeal waiver to the extent that it implicates the voluntariness of his plea(see People v Toback, 125 AD3d at 1061), it is also not preserved for our reviewgiven the absence of a postallocution motion (see People v Bethea, 133 AD3d 1033, 1034 [2015]; People v Jimenez, 96 AD3d1109, 1110 [2012]). Furthermore, defendant's allegations regarding what defensecounsel advised and promised regarding the consequences of the plea, as well as theadequacy of counsel's preparation and representation, concern matters outside the recordand are more properly the subject of a postconviction motion pursuant to CPL article 440(see People v Garry, 133 AD3d at 1040; People v Clapper, 133 AD3d 1037, 1038 [2015]).
Finally, insofar as defendant contends that he was denied due process by the failureof County Court to hold a restitution hearing, the record does not reflect that any hearingwas ever requested. Furthermore, County Court found, upon a review of thedocumentation filed, that no restitution hearing was required and ordered an amount ofrestitution to be paid by defendant based upon the detailed restitution figures submittedto the court. At sentencing, County Court acknowledged defendant's disagreement withthe methodology used by the People to calculate the amount of restitution, but givendefendant's failure to request a restitution hearing or object to the court's determinationthat a hearing was unnecessary, defendant's argument that County Court should haveheld a restitution hearing is not preserved (see People v Kim, 91 NY2d 407, 410[1998]; People v Sparbanie,110 AD3d 1119, 1120 [2013], lv denied 22 NY3d 1203 [2014]). In anyevent, were we to consider the issue, we would find that the documentation submitted bythe People—which included certain adjustments made in accordance withobjections filed by defendant prior to sentencing—provided sufficient evidence tosupport the amount of restitution imposed. Accordingly, in the absence of a request bydefendant for a restitution hearing, County Court did not err in its determination that nohearing was necessary (see Penal Law § 60.27 [2]).
Lahtinen, Rose, Lynch and Aarons, JJ., concur. Ordered that the judgment isaffirmed.