| People v Jensen |
| 2022 NY Slip Op 03250 [205 AD3d 926] |
| May 18, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Jensen, Appellant. |
Gary E. Eisenberg, New City, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass and Alexander J.H.Ochoa of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (William L.DeProspo, J.), rendered February 26, 2020, convicting him of criminal mischief in the seconddegree, upon his plea of guilty, and imposing sentence, including a direction that the defendantpay restitution in the sum of $7,630.
Ordered that the judgment is modified, on the law, by vacating the provision thereofdirecting the defendant to pay restitution in the sum of $7,630; as so modified, the judgment isaffirmed, and the matter is remitted to the County Court, Orange County, for a hearing and a newdetermination as to the proper amount of restitution and the manner of payment thereof.
The defendant pleaded guilty to criminal mischief in the second degree, admitting, inter alia,that he threw a rock through a window of the complainant's home and damaged property with avalue in excess of $1,500. The presentence report indicated that the complainant requested$7,630 in restitution for damages to his home. At sentencing, the only information before theCounty Court regarding the amount of damages was a contractor's estimate, unsigned by thecomplainant, indicating that the cost of work to repair the damages would be $7,630. Thedefendant objected to the amount of restitution requested. As part of the sentence imposed, thecourt directed the defendant to pay restitution in the sum of $7,630.
The defendant validly waived his right to appeal. The record of the plea proceedingdemonstrates that the County Court sufficiently advised the defendant of the nature of the right toappeal, and that the defendant knowingly, voluntarily, and intelligently waived his right to appeal(see People v Ayala, 172 AD3d1085, 1086-1087 [2019]; People vFerguson, 113 AD3d 874, 874 [2014]).
The defendant's claim with respect to the voluntariness of his plea survives his valid waiverof the right to appeal (see People vFontanet, 126 AD3d 723, 723 [2015]). However, the defendant's contention that his pleaof guilty was not made knowingly, voluntarily, and intelligently is unpreserved for appellatereview, as he did not move to withdraw his plea or otherwise raise this issue before the CountyCourt (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Pellegrino, 60NY2d 636, 637 [1983]; People vEllis, 142 AD3d 509, 510 [2016]). Moreover, contrary to the defendant's contention, thenarrow exception to the preservation rule does not apply here, as nothing in the defendant'sfactual recitation cast doubt upon his guilt, negated an essential element of the crime, or calledinto question the voluntariness of his plea (see People v Lopez, 71 NY2d at 666;People v Ellis, 142 AD3d at 510). In any event, the record establishes that the defendant'splea was made knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82NY2d 536, 543 [1993]; People v [*2]Razzaq, 202 AD3d 998 [2022]).
A defendant's waiver of the right to appeal does not preclude appellate review of a challengeto restitution where the amount of restitution was not made part of the plea agreement (see People v Vazquez, 173 AD3d907, 908 [2019]; People vIsaacs, 71 AD3d 1161, 1161 [2010]). Accordingly, the defendant's contention regardingrestitution is not precluded.
" 'Before a defendant may be directed to pay restitution a hearing must be held ifeither: (1) the defendant objects to the amount of restitution and the record is insufficient toestablish the proper amount; or (2) the defendant requests a hearing' " (People v Tippa, 194 AD3d 856,856-857 [2021], quoting People vMorrishill, 127 AD3d 993, 994 [2015]; see Penal Law § 60.27 [2];People v Denny, 159 AD3d830, 831 [2018]).
Here, the defendant objected to the amount of restitution payable to the complainant, and therecord was insufficient to establish the value of damages to the complainant's property in theamount of $7,630 (see People v Tippa, 194 AD3d at 857; People v Denny, 159AD3d at 831; People v Morrishill, 127 AD3d at 994). Accordingly, the defendant wasentitled to a hearing, and so much of the judgment as directed the defendant to pay restitution inthe sum of $7,630 must be vacated, and the matter remitted to the County Court, Orange County,for a hearing and a new determination as to the proper amount of restitution and the manner ofpayment thereof (see People v Tippa, 194 AD3d at 857; People v Denny, 159AD3d at 831; People v Morrishill, 127 AD3d at 994).
"[T]he defendant's contention that he received ineffective assistance of counsel is foreclosedby his waiver of the right to appeal, except to the extent that the alleged ineffective representationmay have affected the voluntariness of the defendant's pleas of guilty" (People v Diaz, 169 AD3d 1059,1059 [2019]). The defendant's contention that his attorney's conduct affected the voluntariness ofhis plea of guilty is without merit (see id. at 1059). Connolly, J.P., Christopher, Genovesiand Ford, JJ., concur.