People v Haines

2017 NY Slip Op 07013 [154 AD3d 1017]

October 5, 2017

Appellate Division, Third Department

As corrected through Wednesday, November 29, 2017

[*1]

The People of the State of New York,Respondent, v Ryan Haines, Appellant.

Donnial K. Hinds, Albany, for appellant.

James R. Farrell, District Attorney, Monticello (Richard K. Caister Jr. of counsel), forrespondent.

Rose, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered January 7, 2015, convicting defendant upon his plea of guilty of the crime of burglary inthe second degree.

Defendant was arrested for unlawfully entering a residence and stealing approximately$7,000. After executing a waiver of indictment and a detailed, written waiver of appeal,defendant orally waived his right to appeal and pleaded guilty to burglary in the second degree ascharged in a superior court information. The plea agreement provided that defendant wouldreceive a prison sentence of 61/2 years followed by five years of postreleasesupervision. As part of the plea agreement, the People promised that if defendant maderestitution in the amount of $2,000 prior to sentencing, they would recommend a prison sentenceof five years followed by five years of postrelease supervision. Defendant failed to make anyrestitution payments and, consistent with the plea agreement, County Court imposed, amongother things, a prison sentence of 61/2 years followed by five years of postreleasesupervision. Defendant now appeals.

We affirm. Defendant's due process claim that County Court should not have imposed theagreed-upon 61/2-year prison term without first conducting an indigency hearing,as well as his claim that such sentence was harsh and excessive, are precluded by hisunchallenged—and, in any event, valid—appeal waiver (see People v Lyman, 119 AD3d968, 969-970 [2014], lv denied 27 NY3d 1153 [2016]; People v Long, 117 AD3d 1326,1326-1327 [2014], lv denied 24 NY3d [*2]1003 [2014]).Moreover, by not bringing his due process claim to the attention of the court at the time ofsentencing or making a motion to withdraw his plea, defendant failed to preserve his claim forour review (see People v Rushlow,137 AD3d 1482, 1483 [2016]; People v Bassoff, 51 AD3d 682, 683 [2008], lv denied 11NY3d 734 [2008]).

Peters, P.J., McCarthy, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.