| People v Pixley |
| 2017 NY Slip Op 04173 [150 AD3d 1555] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v DameariPixley, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
McCarthy, J.P. Appeals (1) from a judgment of the County Court of Warren County (HallSr., J.), rendered July 15, 2015, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the third degree, and (2) from an order of said court, entered September 23,2015, which set the amount of restitution owed by defendant.
Defendant waived indictment and pleaded guilty to attempted burglary in the third degree ascharged in a superior court information stemming from his theft of scrap metal, including copperand brass, from a recycling center on December 24, 2014. The guilty plea also satisfied otherpending charges and two other burglaries of the same recycling center earlier that month. Theplea agreement included a waiver of appeal and required that defendant make restitution.Defendant's motion to withdraw his guilty plea was denied, and County Court thereaftersentenced defendant, as an admitted second felony offender, to the agreed-upon prison term of 2to 4 years. Following a hearing, the court ordered that defendant pay restitution in the amount of$11,471. Defendant now appeals from the judgment of conviction and the order ofrestitution.[FN1]
[*2] Defendant's argument that his guilty plea was not knowing, voluntary and intelligent isnot precluded by his waiver of appeal and was preserved by his unsuccessful motion to withdrawhis guilty plea (see People vFarnsworth, 140 AD3d 1538, 1539 [2016]), but we find that his argument lacks merit.During the plea allocution, when asked about any medical or mental health problems, defendantindicated that he had "ADHD" and an unspecified "handicap[ ]" and that he is "supposed to" but"refuse[s] to take" unnamed prescription medication. Defendant thereafter respondedaffirmatively to County Court's inquiry if he was "thinking clearly today" and "in good physicaland mental health," and for the remainder of the proceeding responded appropriately andcoherently to the court's questions. While defendant initially exhibited reluctance during theallocution to admit his conduct, qualifying his admissions with "supposedly" and claiming that hecould not recall what he stole because he had been "half asleep," the court repeatedly advised himthat he did not have to plead guilty and should not do so unless he was guilty. Defendantconsistently indicated throughout the proceeding that he understood and accepted the conditionsof the plea agreement and wanted to enter a guilty plea, objecting only to the restitution amount,and ultimately admitted unequivocally that he had attempted to steal copper from the recyclingcenter in the early morning hours of December 24, 2014. Thus, the court satisfied its obligationof further inquiry and ensured that defendant's guilty plea was a knowing and voluntary choiceamong alternative courses of action (seePeople v Manor, 27 NY3d 1012, 1013 [2016]; People v Conceicao, 26 NY3d 375, 382 [2015]; People vFiumefreddo, 82 NY2d 536, 547-548 [1993]).
Further, the conclusory claims of defense counsel in defendant's motion to withdraw hisplea—that defendant has "mental and/or emotional issues that render him unable to fullycomprehend and appreciate the nature of the [plea] proceedings"—were unsupported by anaffidavit from defendant or any medical evidence. Accordingly, we discern no basis upon whichto disturb County Court's discretionary determination, after observing defendant firsthand duringthe plea colloquy, to deny defendant's request to withdraw his guilty plea (see CPL220.60 [3]; People v Fisher, 28NY3d 717, 726 [2017]; People v Manor, 27 NY3d at 1013-1014; People v Seeber, 4 NY3d 780,781-782 [2005]; People v Alexander, 97 NY2d 482, 486 [2002]).
Contrary to defendant's claim, the record reflects that the combined oral and written waiverof appeal was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256[2006]; People v Toledo, 144 AD3d1332, 1332-1333 [2016]). The plea minutes reflect that an appeal waiver was recited as acondition of the plea agreement, defendant agreed to it, and County Court explained it to himwithout improperly lumping it with the trial-related rights automatically forfeited by his guiltyplea (see People v Toledo, 144 AD3d at 1332; People v Belile, 137 AD3d 1460, 1461 [2016]). Defendant thensigned a written waiver of appeal in court, after conferring with counsel, indicating that heunderstood it. Given the valid appeal waiver, his challenge to the agreed-upon sentence as harshand excessive is precluded (see People v Lopez, 6 NY3d at 256; People v Toledo,144 AD3d at [*3]1333).[FN2]
However, we must agree with defendant that County Court's order of restitution stemmingfrom the December 18, 2014 uncharged burglary is not authorized. Pursuant to Penal Law§ 60.27, a trial court may order restitution arising from "the offense for which adefendant was convicted, as well as any other offense that is part of the same criminal transactionor that is contained in any other accusatory instrument disposed of by any plea of guilty by thedefendant to an offense" (Penal Law § 60.27 [4] [a]). Defendant's guilty pleapertained to the December 24, 2014 burglary of the warehouse, and satisfied unchargedburglaries from that warehouse on December 15 and 18, 2014. As defendant was apprehendedfollowing the December 24 burglary and the stolen materials from that incident were returned,the People sought restitution for the two uncharged burglaries totaling over $21,000. After ahearing, County Court determined that there was insufficient evidence that defendant hadcommitted the December 15 burglary but ordered restitution in the amount of $11,471 for thematerials stolen in the December 18 burglary.
However, no proof was adduced at the hearing that the December 18 burglary was evercharged in an accusatory instrument and the People did not prove by a preponderance of theevidence that this burglary was part of "the same criminal transaction" as the December 24 crimeof conviction (Penal Law § 60.27 [4] [a]; see People v Connolly, 27 NY3d 355, 359 [2016]). To be part ofthe same criminal transaction, the conduct must be "either (a) so closely related and connected inpoint of time and circumstance of commission as to constitute a single criminal incident, or (b)so closely related in criminal purpose or objective as to constitute elements or integral parts of asingle criminal venture" (CPL 40.10 [2]; see People v Lynch, 25 NY3d 331, 334-335 [2015]). Here, theevidence established that there were three separate burglaries, each committed days apart inwhich distinct materials were stolen, and each was completed when the perpetrator left thepremises with the stolen materials (see e.g. People v Cleveland, 281 AD2d 815, 815-816[2001], lv denied 96 NY2d 900 [2001]). As such, the evidence established that theburglaries were separate "criminal transaction[s]" and did not demonstrate that they were"integral parts of a single criminal venture" (CPL 40.10 [2] [a], [b]), as there was no proof thatthey "involve[d] planned, ongoing organized criminal activity, such as conspiracies, complexfrauds or larcenies, or narcotics rings" (People v Lynch, 25 NY3d at 334-335 [internalquotation marks and citation omitted]). Accordingly, Penal Law § 60.27 (4) (a) didnot authorize restitution for the December 18 burglary, and the restitution order must be vacated(see People v Skerritt, 128 AD3d1110, 1111 [2015]).
Egan Jr., Rose, Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.
Ordered that the order is reversed, on the law, and the amount of restitution vacated.
Footnote 1:Although the restitution orderwas not entered until September 23, 2015, the notice of appeal from that order was filedprematurely on September 22, 2015. In the interest of judicial economy, we excuse this defectand treat the notice of appeal as valid (see CPLR 5520 [c]; People v Lesch, 126 AD3d 1261,1262 n [2015], lv denied 26 NY3d 905 [2015]). Moreover, although generally restitutionorders are not appealable (see CPL 450.10), "we deem the restitution order here to be anappealable amendment to the judgment of conviction" (People v Morrishaw, 92 AD3d 1088, 1088 n 1 [2012], lvdenied 12 NY3d 761 [2009]).
Footnote 2:Although defendant was releasedto parole in December 2016, his challenge to the sentence is not moot because he is still underthe supervision of the Board of Parole until his sentence is completed (see People v Rivers, 130 AD3d1092, 1092 n [2015]).