| People v Musella |
| 2017 NY Slip Op 02474 [148 AD3d 1465] |
| March 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v LauraMusella, Appellant. |
Brian M. Quinn, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered December 16, 2014, convicting defendant upon her plea of guilty of the crime ofattempted burglary in the second degree (two counts).
In October 2013, defendant was arraigned on numerous charges stemming from multipleburglaries that she committed earlier that year. Thereafter, in satisfaction of all then-pendingcharges and pursuant to a negotiated plea agreement, defendant waived indictment and pleadedguilty to a superior court information (hereinafter SCI) that charged her with two counts ofattempted burglary in the second degree, a class D violent felony. In connection with her guiltyplea, defendant also executed a written waiver of her right to appeal in open court. Consistentwith the terms of the plea agreement, County Court imposed a prison sentence of five years oneach count, to be served concurrently, followed by three years of postrelease supervision. CountyCourt also ordered defendant to pay restitution in the amount of $28,000.65. Defendant nowappeals.
Initially, we agree with defendant's contention that the appeal waiver was invalid. Our reviewof the plea colloquy reveals that County Court "failed to explain the significance of the waiver orarticulate that an appeal waiver is 'separate and distinct from those rights automatically forfeitedupon a plea of guilty' " (People vHarris, 121 AD3d 1423, 1424 [2014], lv denied 25 NY3d 989 [2015], quotingPeople v Lopez, 6 NY3d 248,256 [2006]; see People v Lemon,137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]; People v Bouton, 107 AD3d 1035,[*2]1036 [2013], lv denied 21 NY3d 1072 [2013]).Although County Court confirmed that defendant, prior to executing the written appeal waiver inopen court, had a chance to review the appeal waiver with her attorney and that the waiver wasfully explained to her, the court did not discuss or explain to defendant on the record the separateand distinct appellate rights that defendant was waiving or confirm that she was aware that shewas specifically waiving these rights. Although the written waiver of appeal executed bydefendant included language expressing the rights that she was waiving beyond those given up byentering a guilty plea, as it is not evident from the plea colloquy that defendant was in fact awareof the separate and distinct nature of her appellate rights, we are unable to find that the waiver ofthe right to appeal was knowingly and intelligently made (see People v Lemon, 137AD3d at 1423; People v Bouton, 107 AD3d at 1036; cf. People v Larock, 139 AD3d 1241, 1242 [2016], lvdenied 28 NY3d 932 [2016]; Peoplev Lewis, 138 AD3d 1346, 1347 [2016], lv denied 28 NY3d 1073 [2016]).
Defendant claims that the SCI was jurisdictionally defective as it did not apprise defendant ofthe conduct that was the subject of the accusations, and that the SCI failed to identify the crimethat she intended to commit in the dwellings that she entered during the commission of hercrimes. We disagree. While defendant's claim that the SCI was jurisdictionally defective survivesher guilty plea (see People vJackson, 128 AD3d 1279, 1279 [2015], lv denied 26 NY3d 930 [2015]; People v Brown, 75 AD3d 655,656 [2010]), the SCI here specified the Penal Law section under which defendant was chargedand, thus, sufficiently apprised her of the crime intended to be charged (see CPL 200.15,200.50 [7]; People v Mackey, 49 NY2d 274, 279 [1980]; People v Darrell, 145 AD3d 1316,1318 [2016]; People v Cruz, 104AD3d 1022, 1023-1024 [2013]; People v Brown, 75 AD3d at 656).
Next, given the invalid appeal waiver, defendant's challenge to the severity of the sentenceimposed is properly before us for review. Nonetheless, in view of the serious nature ofdefendant's crimes and given that defendant received a sentence shorter than what could havebeen imposed under the terms of the plea agreement, we are unable to find any extraordinarycircumstances or an abuse of discretion warranting a modification of the prison term in theinterest of justice (see People vBorasky, 138 AD3d 1349, 1349 [2016]; People v White, 135 AD3d 1241, 1241 [2016]). Defendant'schallenge to the amount of restitution ordered is unpreserved due to both her consent to therestitution amount as well as her failure to request a hearing or otherwise challenge the amount atthe time of sentencing (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Harris, 139 AD3d 1244,1246 and n 3 [2016], lv denied 28 NY3d 930 [2016]; People v Smith, 112 AD3d 1232, 1233 [2013], lv denied 22NY3d 1203 [2014]; People v Hulett,106 AD3d 1330, 1331 [2013], lv denied 22 NY3d 1139 [2014]; cf. People v Lyman, 119 AD3d968, 970 [2014], lv denied 27 NY3d 1153 [2016]).
Finally, defendant's claim that the sentence imposed was the product of judicial bias is alsonot properly before us absent an appropriate motion or request made to County Court to recuseitself from the case (see CPL 470.05 [2]; People v Prado, 4 NY3d 725, 726 [2004]; People v Mao-Sheng Lin, 50 AD3d1251, 1253 [2008], lv denied 10 NY3d 961 [2008]). In any event, our review of therecord discloses no evidence of judicial bias, especially given that County Court expressly statedthat it did not take into consideration its own experience with a burglary when pronouncing thesentence. Defendant's remaining contentions not addressed herein have been considered andfound to be without merit.
McCarthy, J.P., Rose, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.