| People v Grumberg |
| 2017 NY Slip Op 06683 [153 AD3d 1525] |
| September 28, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Ronald S.Grumberg, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered April 11, 2014, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a weapon in the third degree and grand larceny in the third degree.
During the course of an investigation, deputies with the Ulster County Sheriff's Officediscovered that defendant was engaged in fraudulent motor vehicle transactions and that he wasalso selling firearms and ammunition. In March 2013, they executed a search warrant at hisresidence and recovered, among other things, various types of guns and semiautomatic weapons.As a result, defendant was charged in an indictment with criminal possession of a weapon in thethird degree. This indictment was superseded by a second indictment charging defendant withnumerous additional crimes arising from the search, namely, criminal possession of a weapon inthe second degree (one count), criminal possession of a weapon in the third degree (six counts),criminal possession of a weapon in the fourth degree (three counts) and criminal sale of aweapon in the third degree (three counts). In addition, as part of a separate ongoing fraudinvestigation, defendant was charged in a third indictment with grand larceny in the third degree,grand larceny in the fourth degree and scheme to defraud in the first degree. In satisfaction of alloutstanding charges, defendant pleaded guilty to criminal possession of a weapon in the thirddegree as charged in the second indictment and grand larceny in the third degree as charged inthe third indictment. He also waived his right to appeal, both orally and in writing. In accordancewith the terms of the plea agreement, defendant was sentenced to two years in prison to befollowed by three years of postrelease supervision on his conviction of criminal possession [*2]of a weapon in the third degree and 2 to 6 years in prison on hisconviction of grand larceny in the third degree, which sentences were to run consecutively. Inaddition, with respect to his grand larceny conviction, he was ordered to pay restitution in theamount of $200,000. Defendant now appeals.
Initially, defendant contends that his guilty plea was not knowing, voluntary and intelligentbecause County Court misinformed him of the sentence that he would receive under the terms ofthe plea agreement. Although this claim is not precluded by defendant's valid waiver of the rightto appeal, it is unpreserved for our review as the record does not disclose that defendant made anappropriate postallocution motion (seePeople v O'Keefe, 133 AD3d 1034, 1035 [2015], lv denied 26 NY3d 1148[2016]; People v Broomfield, 128AD3d 1271, 1271 [2015], lv denied 26 NY3d 1086 [2015]). Moreover, the narrowexception to the preservation requirement is inapplicable as defendant did not make anystatements during the plea colloquy that cast doubt upon his guilt (see People v O'Keefe,133 AD3d at 1035; People v Broomfield, 128 AD3d at 1271-1272). In any event, even ifwe were to consider defendant's claim, we would find it to be without merit as the record revealsthat County Court accurately informed defendant of the agreed-upon sentence, imposed the verysame sentence and also advised defendant of the maximum sentence that he faced if convictedafter trial.
Defendant further argues that the 11-month delay between the initial indictment and hisguilty plea violated his constitutional right to a speedy trial. We note that this claim is also notforeclosed by his valid waiver of the right to appeal or his guilty plea (see People v Tuper, 118 AD3d1144, 1146 [2014], lv denied 25 NY3d 954 [2015]; People v Archie, 116 AD3d 1165,1165 [2014]). Nevertheless, it too is unpreserved given that defendant did not raise this claimbefore County Court and it does not implicate the mode of proceedings exception to thepreservation rule (see People vWright, 119 AD3d 972, 973-974 [2014]; People v Archie, 116 AD3d at 1165).Furthermore, the record has not been sufficiently developed to permit adequate review of thisissue (see People v Worthy, 138AD3d 1042, 1043 [2016], lv denied 28 NY3d 939 [2016]; People v Card, 107 AD3d 820, 820[2013], lv denied 21 NY3d 1072 [2013]).
Lastly, defendant challenges County Court's award of restitution in the amount of $200,000on his grand larceny conviction and its imposition of a 10% surcharge. Significantly, the recordreveals that defendant was well aware of the amount of restitution to be ordered and that it wasspecifically made a part of the plea agreement. Thus, defendant's challenge to the amount of theaward is precluded by his valid waiver of the right to appeal and is also unpreserved given hisfailure to request a restitution hearing or otherwise contest the amount at sentencing (see People v Hall, 135 AD3d1246, 1246 [2016], lv denied 27 NY3d 998 [2016]; compare People v Ortiz, 148 AD3d1291, 1292 [2017]). Although defendant's challenge to the 10% surcharge has also not beenpreserved due to his failure to object at sentencing (see People v Rolley, 100 AD3d 1263, 1263-1264 [2012]), wenevertheless find it appropriate to exercise our interest of justice jurisdiction under thecircumstances presented (see People vNesbitt, 144 AD3d 1329, 1330 [2016]). Contrary to the provisions of Penal Law§ 60.27 (8), the record does not include an affidavit indicating that the cost ofcollection and administration of the restitution imposed on the grand larceny conviction exceeded5% of the amount awarded, as is necessary to justify the imposition of a 10% surcharge (see People v Smith, 121 AD3d1297, 1300 [2014], lv denied 25 NY3d 1172 [2015]; People v Rawdon, 296AD2d 599, 600 [2002], lv denied 98 NY2d 771 [2002]; compare People v Lindsey, 80 AD3d1005, 1006-1007 [2011]). Therefore, the judgment must be modified accordingly.
McCarthy, J.P., Garry, Clark and Mulvey, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reversing so much thereof as imposed a 10%collection surcharge on the $200,000 amount of restitution; collection surcharge reduced to 5%of the amount of restitution actually collected; and, as so modified, affirmed.