| People v Perry |
| 2019 NY Slip Op 00504 [168 AD3d 1287] |
| January 24, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Bernard F. Perry, Appellant. |
Dana L. Salazar, East Greenbush, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Appeal from a judgment of the County Court of Franklin County (Richards, J.), renderedDecember 2, 2016, convicting defendant upon his plea of guilty of the crime of attempted assaultin the second degree.
Defendant waived indictment, pleaded guilty to the reduced charge of attempted assault inthe second degree and waived his right to appeal. He was sentenced as a second felony offenderto a prison term of 2 to 4 years and was ordered to pay $7,312 in restitution. Defendantappeals.
Defendant contends that his challenge to the imposition of restitution survives his waiver ofthe right to appeal because it was not part of the plea agreement and that, in ordering restitution,County Court imposed an enhanced sentence without giving him an opportunity to withdraw hisplea. We disagree. Contrary to defendant's contention, the plea agreement, which was reduced towriting, contemplated the imposition of restitution. At the commencement of the pleaproceeding, the People initially indicated that no restitution would be requested because therewas no response to inquiries pertaining to the amount of restitution sought by the victim. Duringthe colloquy, but prior to defendant entering a waiver of the right to appeal or pleading guilty, thePeople provided to both County Court and defense counsel a recently-received fax regarding theamount of restitution sought in connection with the cost of dental services incurred by the victimas a result of the crime. Defendant then proceeded to waive his right to appeal and enter a guiltyplea to attempted assault in the second degree. County Court sentenced defendant and imposedthe requested amount of restitution.
Under the circumstances, we are unpersuaded that the waiver of the right to appeal isinapplicable to defendant's challenge regarding the restitution imposed. As the recorddemonstrates that County Court adequately explained, and defendant acknowledged that heunderstood, that the waiver of the right to appeal was separate and distinct from the rightsautomatically forfeited by the guilty plea, we find that the appeal waiver was knowingly,voluntarily and intelligently entered (seePeople v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Lyman, 119 AD3d 968,969 [2014], lv denied 27 NY3d 1153 [2016]). As such, the valid appeal waiver precludeshis challenge to the restitution imposed (see People v Knight, 164 AD3d 957, 958 [2018], lv denied32 NY3d 1005 [2018]; People vGrumberg, 153 AD3d 1525, 1527 [2017]). Even if defendant's challenge to therestitution was not precluded by the valid appeal waiver, it is nevertheless unpreserved for ourreview due to his failure to request a hearing or object to the amount at sentencing (see People v Schrom, 159 AD3d1136, 1137 [2018], lv denied 31 NY3d 1087 [2018]; People v Grumberg,153 AD3d at 1527).
Garry, P.J., Egan Jr., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.