| People v Daniels |
| 2021 NY Slip Op 02190 [193 AD3d 1179] |
| April 8, 2021 |
| Appellate Division, Third Department |
[*1](April 8, 2021)
| The People of the State of New York,Respondent, v Marc Daniels, Appellant. |
Donna Maria Lasher, Youngsville, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered December 4, 2015, convicting defendant upon his plea of guilty of the crime of burglaryin the second degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in the seconddegree and purportedly waived his right to appeal. Defendant entered the plea with theunderstanding that County Court would sentence him, as a second felony offender, to seven yearsin prison to be followed by five years of postrelease supervision, and further order him to pay$465 in restitution. County Court did so, and defendant appeals.
We affirm. Initially, defendant's challenge to the validity of his appeal waiver isunpersuasive. Defendant assured County Court during the plea colloquy that he had been givensufficient time to discuss the plea agreement with counsel and was voluntarily pleading guilty.County Court then set forth the rights automatically forfeited by a guilty plea and explained that,separate from those rights, defendant also had a right to appeal that he was expected to waive as aterm of the plea agreement. Defendant stated that he understood both that expectation andCounty Court's detailed explanation of the nature of the right to appeal, then made clear that hewas willing to give the right up. Defendant proceeded to sign a detailed written waiver, which hehad reviewed with defense counsel and accurately advised him of the types of issues that wereencompassed by it, in open court. Although defendant suggests that County Court could haveconducted further inquiry on his decision to waive the right to appeal, "there is no mandatorylitany that must be used in order to obtain a valid waiver of appellate rights," and we are satisfiedfrom this record that defendant's waiver was knowing, intelligent and voluntary (People v Johnson, 14 NY3d 483,486 [2010]; see People v Thomas,34 NY3d 545, 564 [2019]; People vThomas, 190 AD3d 1157, 1158-1159 [2021]; People v Williams, 185 AD3d 1352, 1353 [2020], lv denied35 NY3d 1116 [2020]).
Defendant's further challenge to the voluntariness of his plea survives his valid appealwaiver, but is unpreserved given his apparent failure to make an appropriate postallocutionmotion despite having had ample time to do so (see People v Conceicao, 26 NY3d 375, 381-382 [2015]; People v Botts, 191 AD3d 1044,1045 [2021]; People v Apelles, 185AD3d 1298, 1299 [2020], lv denied 35 NY3d 1092 [2020]). As defendant made no"statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwisecalled into question the voluntariness of [his] plea," the narrow exception to the preservationrequirement was not implicated (People v Botts, 191 AD3d at 1045; see People vApelles, 185 AD3d at 1299). To the contrary, defendant was well aware of the terms of theplea agreement and the sentence to be imposed under it, and he "affirmatively 'indicated that hehad sufficient time to confer [*2]with counsel and had not beenforced into pleading guilty, [thus] belying his present claims of coercion or unduepressure' " (People v Smith,155 AD3d 1244, 1245 [2017], quoting People v Broomfield, 128 AD3d 1271, 1272 [2015], lvdenied 26 NY3d 1086 [2015]).
Defendant's challenge to the sentence as harsh and excessive is foreclosed by his valid appealwaiver (see People v Lopez, 6NY3d 248, 256 [2006]; People v Botts, 191 AD3d at 1045). Defendant's attack uponthe restitution order is unpreserved absent any demand for a hearing or objection at sentencingand, in light of his awareness of the restitution amount when he pleaded guilty, is also precludedby his appeal waiver (see People vBonfey, 185 AD3d 1091, 1091-1092 [2020]; People v Grumberg, 153 AD3d 1525, 1527 [2017]). Finally,defendant's complaint about the conditional imposition of a 10% surcharge on the restitutionaward is unpreserved and, in any event, lacks merit given the lack of indication that the surchargetook effect (cf. People v Grumberg, 153 AD3d at 1527).
Garry, P.J., Lynch, Clark and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.