| People v Adams |
| 2017 NY Slip Op 06484 [153 AD3d 1449] |
| September 14, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Thomas A.Adams, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Saratoga County (Sypniewski, J.),rendered September 21, 2015, convicting defendant upon his plea of guilty of the crime ofburglary in the third degree (two counts).
Defendant waived indictment and agreed to be charged in a superior court information withtwo counts of burglary in the third degree. In accordance with a plea agreement, defendantpleaded guilty to these crimes in satisfaction of the superior court information, as well as otherpending charges, and also waived his right to appeal. Pursuant to the plea agreement, defendantwas to be sentenced to two consecutive sentences of 1
We affirm. Initially, we reject defendant's contention that his waiver of the right to appealwas invalid. The record confirms that County Court distinguished the right to appeal from therights automatically forfeited by a guilty plea. Defendant acknowledged his [*2]understanding of the ramifications of the waiver and executed adetailed written waiver with counsel in open court. Accordingly, defendant validly waived hisright to appeal (see People vMcCall, 146 AD3d 1156, 1157 [2017], lv denied 29 NY3d 1034 [2017]; People v Hernandez, 140 AD3d1521, 1522 [2016], lv denied 28 NY3d 971 [2016]).
Defendant's challenge to the voluntariness of his plea and his claim of ineffective assistanceof counsel survive his appeal waiver, but are unpreserved for our review, as there is no indicationin the record that he made an appropriate postallocution motion (see People v Cox, 146 AD3d1154, 1154 [2017]; People vKormos, 126 AD3d 1039, 1040 [2015]). As to the plea, the narrow exception to thepreservation requirement was triggered when defendant claimed that the location of the crimecharged in the second count of the superior court information was not a building, potentiallynegating an element of the charged crime (see Penal Law § 140.20). CountyCourt, however, made a further inquiry into defendant's claim and, following a brief discussionduring which defense counsel conceded that the structure in question constituted a buildingwithin the meaning of the statute (see Penal Law § 140.00 [2]), the courtconfirmed that defendant understood and that his plea was voluntary (see People v Ahrens, 145 AD3d1322, 1322 [2016], lv denied 28 NY3d 1181 [2017]; People v English, 100 AD3d 1147,1148 [2012]).
As to defendant's challenge to the amount of restitution ordered, the record reflects that theterms of the plea agreement included restitution in the specific amount ordered, and defendantdid not request a hearing or otherwise challenge the amount at sentencing. Accordingly,defendant's challenge is both precluded by his appeal waiver and unpreserved for our review (see People v Hall, 135 AD3d1246, 1246 [2016], lv denied 27 NY3d 998 [2016]; People v Campo, 125 AD3d 1058,1059 [2015], lv denied 25 NY3d 1070 [2015]). Further, we reject defendant's contentionthat County Court improvidently enhanced his sentence. County Court advised defendant at thetime of his plea of the consequences of being arrested prior to sentencing, and defendant waiveda hearing and any other challenge to the enhancement of his sentence in exchange for theenhanced sentence imposed (see Peoplev Slamp, 145 AD3d 1320, 1321 [2016]; People v Lord, 128 AD3d 1277, 1278-1279 [2015]). Finally,defendant's claim that the enhanced sentence is harsh and excessive is precluded by his appealwaiver given that County Court advised him of the consequences of violating the plea conditions(see People v Perkins, 125 AD3d1045, 1047 [2015]; People vLyman, 119 AD3d 968, 970 [2014], lv denied 27 NY3d 1153 [2016]).
McCarthy, J.P., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.