| People v Mothersell |
| 2018 NY Slip Op 08876 [167 AD3d 1580] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v James Mothersell, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, A.J.),rendered June 6, 2017. The judgment convicted defendant, upon his plea of guilty, of grandlarceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofgrand larceny in the fourth degree (Penal Law § 155.30 [5]). County Court issuedtwo orders of restitution, one of which defendant contends must be vacated because there was nomention of it during the plea proceeding and thus the sentence was improperly enhanced, andbecause there was no record basis to support it. Initially, we disagree with the People thatdefendant's contention is precluded by the waiver of the right to appeal. Contrary to theirassertion, there was no written waiver of the right to appeal. Although there is an oral waiver ofthe right to appeal, it is invalid inasmuch as the court "conflated the right to appeal with thoserights automatically forfeited by the guilty plea" (People v Rogers, 159 AD3d 1558, 1558 [4th Dept 2018], lvdenied 31 NY3d 1152 [2018]). As a result, the record does not establish that "defendantunderstood that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People vLopez, 6 NY3d 248, 256 [2006]).
We conclude, however, that defendant failed to preserve his contention for our review byfailing to object to the order of restitution or request a hearing (see People v Meyer, 156 AD3d1421, 1421-1422 [4th Dept 2017], lv denied 31 NY3d 985 [2018]; People vLawson [appeal No. 7], 124 AD3d 1249, 1250 [4th Dept 2015]; People v Lovett, 8 AD3d 1007,1008 [4th Dept 2004], lv denied 3 NY3d 677 [2004]). We decline defendant's requestthat we exercise our power to review his contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [3] [c]). The record establishes that, at sentencing, the partiesagreed that an additional criminal charge against defendant would be encompassed by the plea,and the restitution order at issue corresponds to that charge. Contrary to defendant's contention,the restitution order does not render the sentence illegal. While we agree with defendant thatthere is nothing in the record that shows that the person named in the restitution order is a"victim" within the meaning of Penal Law § 60.27 (4) (b), there is nothing in therecord to refute that he is a victim. "[I]t is well established that potential illegality does nottrigger the illegal sentence exception to the preservation rule" (People v Graves, 163 AD3d 16, 24[4th Dept 2018]). Present—Whalen, P.J., Centra, Peradotto, Curran and Winslow, JJ.