| People v Ortiz |
| 2017 NY Slip Op 01731 [148 AD3d 1291] |
| March 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Edwin E.Ortiz, Appellant. |
M. Elizabeth Coreno, Saratoga Springs, for appellant.
Kelli P. McCoski, District Attorney, Fonda, for respondent.
Clark, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered July 22, 2014, convicting defendant upon his plea of guilty of the crime of assault in thesecond degree.
Defendant waived indictment and pleaded guilty to assault in the second degree as charged ina superior court information, and also waived his right to appeal. County Court thereafterimposed the agreed-upon prison sentence of three years, followed by three years of postreleasesupervision, and ordered defendant to pay one of the victims restitution in the amount of$94,307.32. Defendant now appeals, and we affirm.
Initially, we are unpersuaded by defendant's assertion that his waiver of his right to appealwas not knowing, intelligent and voluntary. County Court explained, and defendantcommunicated his understanding, that, in addition to the trial-related rights that he was forfeitingby pleading guilty, he was required to waive his right to appeal under the "particular pleaagreement" that he was entering into. Defendant also signed a written waiver of appeal in opencourt, after having been afforded an opportunity to consult with counsel as to the terms of thatwritten waiver, which expressly stated that defendant understood that, by waiving his right toappeal, he was "giving up rights beyond those that [he gave] up by entering a guilty plea."Accordingly, we find that defendant knowingly, voluntarily and intelligently waived his right toappeal (see People v Velazquez, 125AD3d 1063, 1063 [2015], lv denied 25 NY3d 993 [2015]; People v Terrell, 123 AD3d 1341,1341 [2014], lv denied 25 NY3d 953 [2015]; People v Baliraj, 101 AD3d 1175, 1176 [2012], lv denied21 NY3d 941 [2013]). Consequently, the valid appeal waiver precludes defendant's [*2]challenge to the sentence as harsh and excessive (see People v Belile, 137 AD3d1460, 1461 [2016]; People vNeiles, 128 AD3d 1179, 1180 [2015]; People v Banks, 122 AD3d 953, 954 [2014], lv denied 26NY3d 925 [2015]).
Defendant further challenges the amount of restitution awarded to one of the victims, anissue that defendant preserved by participating in the restitution hearing and contesting theamount imposed at the time of sentencing (see People v Ford, 77 AD3d 1176, 1176 [2010], lv denied17 NY3d 816 [2011]; compare People vHakkenberg, 142 AD3d 1251, 1252 [2016], lv denied 28 NY3d 1072 [2016]; People v Miller, 137 AD3d 1485,1486 [2016]), and that is not precluded by the valid appeal waiver since the underlying pleaagreement did not specify the amount of restitution to be awarded (see People v Brasmeister, 136 AD3d1122, 1123 [2016], lv denied 27 NY3d 993 [2016]; People v Gardner, 129 AD3d1386, 1388 [2015]; People vSmith, 100 AD3d 1102, 1102 [2012]). "In seeking restitution, the People bore theburden of demonstrating the amount of the victim's out-of-pocket losses by a preponderance ofthe evidence. The amount gained by defendant or taken from the victim must be offset againstthe value of any benefit that may have been conferred upon the victim, and the People must showboth components of the restitution equation, the amount taken minus the benefit conferred" (People v Decker, 139 AD3d 1113,1117-1118 [2016] [internal quotation marks and citations omitted], lv denied 28 NY3d928 [2016]; accord People vJohnson, 91 AD3d 1121, 1123 [2012], lv denied 18 NY3d 959 [2012];see Penal Law § 60.27 [2]; CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d217, 221-222 [2007]).
In our view, the evidence presented at the hearing—which included the bills that thevictim received for the medical services rendered to him as a result of his injuries inflicted bydefendant—was sufficient to satisfy the People's burden of proving the victim'sout-of-pocket losses (see Penal Law § 60.27 [2], [5] [b]; People v Sherman, 91 AD3d 982,983 [2012], lv denied 19 NY3d 867 [2012]; People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied14 NY3d 893 [2010]; People vDrew, 16 AD3d 840, 841 [2005]; People v Canada, 156 AD2d 1001, 1002[1989], lv denied 75 NY2d 964 [1990]). Accordingly, County Court properly fixed theamount of restitution, and, as defendant has failed to contradict the People's calculation bymerely pointing to the language contained in one of the medical bills indicating an offer to settleabsent payment of the demanded sum, we decline to disturb the award (see People vDecker, 139 AD3d at 1118).
McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.