| People v Suits |
| 2018 NY Slip Op 01098 [158 AD3d 949] |
| February 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Aaron J.Suits, Appellant. |
Linda A. Berkowitz, Ormond Beach, Florida, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Saratoga County (Sypniewski,J.), rendered August 20, 2015, convicting defendant upon his plea of guilty of the crimes ofburglary in the third degree (two counts).
Defendant and a codefendant were charged with four counts of burglary in the third degreeafter they entered a vacant restaurant located in the Town of Malta, Saratoga County on fouroccasions in January 2015 and removed copper tubing. Information was received by the SaratogaCounty Sheriff's Department that, during the same time period, defendant participated in asimilar burglary with a different codefendant at another vacant restaurant located in the Town ofHalfmoon, Saratoga County. Defendant waived indictment and agreed to be prosecuted by asuperior court information (hereinafter SCI) charging him with two counts of burglary in thethird degree in connection with his activities at the Malta restaurant. He pleaded guilty to the SCIin satisfaction of all pending and potential charges arising from the burglaries at both restaurants.Under the terms of the plea agreement, he waived his right to appeal, both orally and in writing,and was to be sentenced as a second felony offender to consecutive prison terms of3
Initially, we find that defendant's waiver of the right to appeal was valid as the recorddiscloses that County Court distinguished the right to appeal from the other trial-related rightsthat defendant was forfeiting by pleading guilty and because defendant communicated hisunderstanding of the waiver and executed a detailed written waiver in open court after conferringwith counsel (see People vLawrence, 155 AD3d 1259, 1259-1260 [2017]; People v Campbell, 155 AD3d 1250, 1251 [2017]). Defendant'svalid waiver of the right to appeal precludes his challenges to the severity of the sentence (seeid.), nonjurisdictional defects in the SCI (see People v Rossborough, 101 AD3d 1775, 1775 [2012]) and theeffectiveness of his counsel to the extent that it did not impact the voluntariness of his guilty plea(see People v Morelli, 46 AD3d1215, 1217 [2007], lv denied 10 NY3d 814 [2008]).
Although defendant also contends that his guilty plea was not knowing, voluntary orintelligent, this claim has not been preserved for our review as the record does not disclose thathe made an appropriate postallocution motion (see People v Williams, 155 AD3d 1253, 1254 [2017]; People v White, 153 AD3d 1041,1041 [2017]). Moreover, the narrow exception to the preservation rule is inapplicable asdefendant did not make any statements during the plea colloquy that cast doubt upon his guilt orcalled into question the voluntariness of his plea (see People v Mathayo, 155 AD3d 1090, 1091 [2017]; People v Fay, 154 AD3d 1178,1181 [2017]).
Defendant further asserts that the SCI is jurisdictionally defective because it did not identifythe underlying crime that he intended to commit during the burglary. We are not persuaded. "Acharging instrument that incorporates by reference the statutory provisions applicable to thecrime charged has been held to allege the material elements of the crime sufficiently to survive ajurisdictional challenge" (People vKamburelis, 100 AD3d 1189, 1189-1190 [2012] [citations omitted]; see People v McDuffie, 89 AD3d1154, 1155 [2011], lv denied 19 NY3d 964 [2012]). Here, the SCI specificallyreferenced Penal Law § 140.20, which defines burglary in the third degree.Significantly, the statute does not specify that the underlying crime must be identified(see Penal Law § 140.20), nor has this been held to be a requirement (see e.g. People v Musella, 148 AD3d1465, 1467 [2017], lv denied 29 NY3d 1093 [2017]). Consequently, we find that theSCI validly charged defendant with two counts of burglary in the third degree, to which hepleaded guilty.
Defendant also challenges the legality of the sentence and the restitution award. Contrary todefendant's claim, the imposition of consecutive sentences was authorized given that theburglaries to which defendant pleaded guilty occurred on two different dates and werecompletely separate and distinct acts, notwithstanding the fact that they occurred at the samelocation (see People v Frazier, 16NY3d 36, 41 [2010]; People v Brown, 255 AD2d 686, 687 [1998], lv denied92 NY2d 1029 [1998]). As for the restitution award, the People concede that County Courterroneously included the amount of $31,000 as compensation to the owner of the Halfmoonrestaurant when there was no accusatory instrument filed charging defendant with any crimesrelated thereto. We must agree. "Penal Law § 60.27 permits a trial court to requirerestitution arising from 'the offense for which a defendant was convicted, as well as any otheroffense that is part of the same criminal transaction or that is contained in any other accusatoryinstrument disposed of by any plea of guilty by the defendant to an offense' " (People v Skerritt, 128 AD3d 1110,1111 [2015], quoting Penal Law § 60.27 [4] [a]). Here, the SCI was the soleaccusatory instrument filed and it covered crimes related only to the Malta restaurant. [*3]Consequently, the restitution award should be modified bydeducting $31,000 to be paid to the owner of the Halfmoon restaurant, with the surcharge to berecalculated accordingly. Otherwise, we find no reason to disturb the restitution award.
McCarthy, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as directed defendant to pay $31,000 in restitution tothe owner of the restaurant in the Town of Halfmoon, Saratoga County, and, as so modified,affirmed.