People v Schrom

2018 NY Slip Op 01507 [159 AD3d 1136]

March 8, 2018

Appellate Division, Third Department

As corrected through Wednesday, May 2, 2018

[*1]

The People of the State of New York,Respondent, v Michael Schrom, Appellant.

Adam G. Parisi, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.

McCarthy, J. Appeal from a judgment of the County Court of Schenectady County (Loyola,J.), rendered March 11, 2015, convicting defendant upon his plea of guilty of the crime ofcriminal possession of stolen property in the third degree.

Defendant pleaded guilty to criminal possession of stolen property in the third degree andwaived his right to appeal. He was sentenced as a second felony offender to a prison term of31/2 to 7 years and ordered to pay restitution in the amount of $1,675 plus asurcharge. Defendant appeals.

Initially, the People concede, and our review of the record confirms, that the waiver of theright to appeal was invalid inasmuch as County Court did not explain the separate and distinctnature of the waiver or ascertain that defendant fully understood its consequences (see People v Loika, 153 AD3d1516, 1517 [2017]; People vWoods, 150 AD3d 1560, 1562 [2017], lv denied 29 NY3d 1095 [2017]). Assuch, defendant's challenge to the amount of restitution imposed is not precluded by the appealwaiver. Nevertheless, the issue is unpreserved for our review because defendant, who was wellaware of the amount of restitution to be ordered given that it was part of the plea agreement,failed to request a restitution hearing or otherwise contest the amount at sentencing (seePeople v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Johnson, 151 AD3d 1462, 1466 [2017], lv denied30 NY3d 1106 [2018]; People vMusella, 148 AD3d 1465, 1467 [2017], lv denied 29 NY3d 1093 [2017]).

Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.