| People v Woods |
| 2016 NY Slip Op 05594 [141 AD3d 954] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Emmett Woods, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 25, 2014, convicting defendant upon his plea of guilty of the crimesof scheme to defraud in the first degree, identity theft in the second degree and criminalpossession of a forged instrument in the second degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleadedguilty to scheme to defraud in the first degree, identity theft in the second degree andcriminal possession of a forged instrument in the second degree as charged in separatesuperior court informations. Defendant also orally waived his right to appeal andexecuted a written waiver of appeal in open court. County Court sentenced defendant, asa second felony offender, to an aggregate prison term of 7
Initially, we disagree with defendant that his waiver of appeal was invalid. In thewritten waiver, defendant acknowledged that he discussed with his counsel the legalramifications of waiving his right to appeal, that he ordinarily retained the right to appealand that, as part of his negotiated plea, he was waiving that right. Moreover, CountyCourt provided defendant with time to read, sign and discuss the waiver with counsel,confirmed that defendant understood the waiver and explained that his waiver of appealwas separate and distinct from [*2]those rights forfeitedupon his guilty plea. Accordingly, we conclude that defendant's waiver of appeal wasknowing, voluntary and intelligent (see People v Therrien, 134 AD3d 1231, 1232 [2015]; People v Fligger, 117 AD3d1343, 1344 [2014], lv denied 23 NY3d 1061 [2014]; People v Rosseter, 62 AD3d1093, 1094 [2009]). Defendant's argument that the sentence was harsh and excessiveis therefore precluded by his valid waiver of appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Brasmeister, 136AD3d 1122, 1123 [2016], lv denied 27 NY3d 993 [2016]).
Although the appeal waiver does not preclude defendant's assertion that CountyCourt should have conducted a restitution hearing (see People v Thomas, 71 AD3d 1231, 1232 [2010], lvdenied 14 NY3d 893 [2010]; compare People v Taylor, 70 AD3d 1121, 1122 [2010],lv denied 14 NY3d 845 [2010]), he neither requested a hearing nor objected tothe amount of restitution imposed at the time of sentencing. In addition, while theamount was not specified, defendant's plea agreement contemplated restitution, anddefense counsel expressly stated, at sentencing, that he had reviewed the amount ofrestitution proposed by the People and had no objection to it. Under these circumstances,defendant's contention is unpreserved for our review, and we discern no reason to takecorrective action in the interest of justice (see People v Sparbanie, 110 AD3d 1119, 1120 [2013],lv denied 22 NY3d 1203 [2014]; People v Rossborough, 100 AD3d 1149, 1149 [2012]).
Finally, we disagree with defendant's contention that County Court imposed anillegal sentence by directing that the sentences for scheme to defraud in the first degreeand identity theft in the second degree run consecutively.[FN*] Under the circumstances of this case,the allegations set forth in the superior court informations, combined with the factsadduced during the plea allocution, sufficiently establish that these crimes "are distinctand [that] the charges arose from separate acts" (People v Hayes, 71 AD3d 1187, 1189 [2010], lvdenied 15 NY3d 852 [2010]). Accordingly, we conclude that the imposition ofconsecutive sentences was not illegal (see People v Dean, 8 NY3d 929, 931 [2007]; People v Howland, 130 AD3d1105, 1105 [2015], lv denied 26 NY3d 1089 [2015]).
McCarthy, J.P., Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's waiver ofhis right to appeal does not preclude his challenge to the legality of his sentence (see People v Howland, 130AD3d 1105, 1105 [2015], lv denied 26 NY3d 1089 [2015]).