| People v Davis |
| 2017 NY Slip Op 03568 [150 AD3d 1329] |
| May 4, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kymberlee Davis, Appellant. |
Martin J. McGuinness, Saratoga Springs, 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 (Loyola, J.),rendered January 29, 2015, convicting defendant upon her plea of guilty of the crime of assault inthe second degree.
In satisfaction of a seven-count indictment, defendant pleaded guilty to assault in the seconddegree, admitting that she had intentionally caused injuries to the victim by slashing her with aknife. Pursuant to the plea agreement, which included a waiver of appeal and required restitution,the prison sentence was capped at seven years. County Court thereafter imposed a prisonsentence of four years with three years of postrelease supervision, ordered that defendant pay$400 in restitution and issued an order of protection. Defendant appeals.
Initially, defendant's challenge to her sentence as harsh and excessive is not precluded by herwaiver of appeal, as the record reflects that the waiver was not knowing, voluntary or intelligent(see People v Lopez, 6 NY3d248, 256 [2006]; People vLemon, 137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]). To thatend, County Court's brief reference to the waiver of appeal during the plea allocutionimpermissibly lumped the waiver in with trial-related rights automatically forfeited bydefendant's guilty plea and the court did not ascertain, on the record, that she understood thenature of her waiver of appellate rights (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; Peoplev Lopez, 6 NY3d at 256-257). While defendant signed a written waiver in court afterreviewing it with counsel, the court made no inquiry of defendant or her counsel as to whetherdefendant had read the waiver, was aware of its contents or understood it (see People v Lunan, 141 AD3d947, 948 [2016], lv denied 28 NY3d 1125 [2016]; People v [*2]Lemon, 137 AD3d at 1423; People v Jeffery, 135 AD3d 1235, 1236 [2016]). As defendant'sappreciation of the consequences of the waiver is not established on the record, it is not valid (see People v Elmer, 19 NY3d 501,510 [2012]; People v Bradshaw, 18 NY3d at 265).
However, we are not persuaded by defendant's argument that the sentence imposed was harshor excessive. The sentence was appreciably less than the maximum permissible sentence for thiscrime (see Penal Law § 70.02 [1] [c]; [2] [b]; [3] [c]; People vLemon, 137 AD3d at 1423). In that regard, the record reflects that County Court fullyconsidered, among other mitigating factors, defendant's employment history, the ProbationDepartment's sentencing recommendation and that this was her first criminal conviction. Giventhe deliberate and violent nature of defendant's assault on the unarmed victim in her home, whichcaused injuries requiring surgeries and resulting in permanent damage, we do not find that thecourt abused its discretion or that extraordinary circumstances exist to warrant a reduction of thesentence in the interest of justice (see CPL 470.15 [4] [c]; [6] [b]; People v Brown, 123 AD3d 1298,1299 [2014], lv denied 27 NY3d 993 [2016]).
Defendant also contends that County Court improperly ordered her to pay restitution in theamount of $400 to compensate the victim for the theft of her cell phone. This challenge to therestitution order is not preserved for our review, as defendant did not request a hearing or objectat sentencing to the amount or basis for the restitution order, although notified in advance of thevictim's request for such restitution (see People v Horne, 97 NY2d 404, 414 n 3 [2002];People v Hakkenberg, 142 AD3d1251, 1252 [2016], lv denied 28 NY3d 1072 [2016]). In any event, contrary todefendant's claim, restitution was a condition of the plea agreement in an amount to bedetermined and was not limited to unreimbursed medical expenses. Further, defendant expresslystated at sentencing that she was willing to pay the victim's requested restitution. Defendant'sremaining claims lack merit.
McCarthy, J.P., Egan Jr., Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.