People v Perez

2019 NY Slip Op 02753 [171 AD3d 1309]

April 11, 2019

Appellate Division, Third Department

As corrected through Wednesday, May 29, 2019

[*1]

The People of the State of New York,Respondent, v Omaida Perez, Appellant.

Marshall Nadan, Kingston, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), renderedMarch 16, 2016, convicting defendant upon her pleas of guilty of the crimes of grand larceny inthe fourth degree and burglary in the third degree.

In April 2015, defendant waived indictment and pleaded guilty to a superior courtinformation charging her with one count of grand larceny in the fourth degree with theunderstanding that she would receive a split sentence of six months in the local jail and five yearsof probation. The plea agreement required defendant to waive her right to appeal, and she waswarned that County Court would not be bound by its sentencing commitment should defendant,among other things, commit any new offenses. Defendant was released on her own recognizancepending sentencing and, while at liberty, committed additional crimes. To resolve the newcharges, defendant agreed to waive indictment and plead guilty to a superior court informationcharging her with one count of burglary in the third degree. The plea agreement, which requireddefendant to waive her right to appeal, contemplated that defendant would be sentenced to aprison term of 11/3 to 4 years upon her conviction of grand larceny in the fourthdegree and to a prison term of 21/3 to 7 years upon her conviction of burglary inthe third degree—said sentences to be served consecutively. Defendant thereafter pleadedguilty to burglary in the third degree, and County Court imposed the promised prison terms. Afterthe judgment of conviction was rendered, County Court entered two separate orders imposingrestitution and the mandatory surcharge. Defendant twice sought resentencing/deferral/remissionwith respect to the surcharges and restitution imposed, and—by orders entered November29, 2016 and December 12, 2017—County Court denied the requested relief. Defendantappeals from the judgment of conviction.

We affirm. Defendant's primary claim—that the agreed-upon sentence imposed washarsh and excessive—is precluded by her unchallenged waivers of the right to appeal (see People v Mones, 168 AD3d1288, 1288 [2019]; People vBallard, 167 AD3d 1082, 1083 [2018]; People v Allen, 166 AD3d 1210, 1211 [2018], lv denied 32NY3d 1201 [2019]). The balance of defendant's argument regarding the denial of herpostjudgment applications for, among other things, deferral and/or remission of the restitutionand surcharges imposed (see CPL 420.10, 420.30, 420.40) is not properly before us.Defendant did not seek such relief at the time of sentencing (compare People v Bibeau, 140 AD3d 1530, 1531 [2016], lvdenied 28 NY3d 969 [2016]; Peoplev Flanders, 110 AD3d 1112, 1112 [2013]), and County Court's postjudgment orders arenot part of the judgment of conviction from which this appeal is taken (see People v Moore, 152 AD3d1088, 1088 [2017]; People v Flanders, 110 AD3d at 1113 n).

Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.