People v. Casiano
| Decision Date | 10 June 2004 |
| Docket Number | 14572. |
| Citation | 779 N.Y.S.2d 259,2004 NY Slip Op 04800,8 A.D.3d 761 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ELMANUEL CASIANO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered December 13, 2002, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree.
SPAIN, J.P.
Defendant was charged with criminal possession of a forged instrument in the second degree and criminal possession of stolen property in the fifth degree in connection with his possession and negotiation of two forged checks in the amounts of $90 and $374.54 at two branches of a local bank. Defendant waived indictment and pleaded guilty to criminal possession of a forged instrument in the second degree in full satisfaction of these charges, as well as other potential charges stemming from defendant's involvement in a burglary at the law offices of Nicholas Morsillo from which the checks were obtained, but for which no accusatory instrument was apparently ever filed. As part of the plea agreement, defendant agreed to pay restitution to the victims and to be sentenced to 2 to 6 years in prison. He also executed a written waiver of the right to appeal which specifically included "any award of restitution directed by the Court." County Court sentenced defendant to the agreed-upon prison term and, in accordance with a separate agreement between the parties reached after the plea but prior to sentencing, ordered him to pay restitution in the amount of $1,114.54, consisting of $140 to the bank, $374.54 jointly to the owner of the account on which the checks were drawn and to Morsillo, whose name defendant forged as the owner's attorney-in-fact, and $600 to Morsillo individually for property damage.
Defendant's sole contention on appeal is that County Court exceeded the authority granted to it under Penal Law § 60.27 by including in the restitution figure the $600 to Morsillo for property damages and an additional $50 to the bank because such amounts were neither attributable to the offense to which he pleaded guilty nor part of the same criminal transaction. Although defendant's waiver of appeal forecloses consideration of his objection to the amount of restitution ordered for those crimes related to his plea, he is not precluded from arguing that a portion of the restitution award was not authorized by law, inasmuch as an objection to the legality of a sentence may not be waived (see People v Seaberg, 74 NY2d 1, 9 [1989]; People v LaValley, 272 AD2d 786, 786 [2000]; People v Watson, 197 AD2d 880, 880-881 [1993]). Likewise, defendant's...
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