People v. Empey

• Decision Date: 27 May 2010
• Citation: 73 A.D.3d 1387,901 N.Y.S.2d 756,2010 N.Y. Slip Op. 04471
• Parties: The PEOPLE of the State of New York, Respondent,v.John R. EMPEY, Appellant.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 1387
901 N.Y.S.2d 756
2010 N.Y. Slip Op. 04471

The PEOPLE of the State of New York, Respondent,
v.
John R. EMPEY, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 27, 2010.

[901 N.Y.S.2d 757]

John A. Cirando, Syracuse, for appellant.Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), for respondent.Before: CARDONA, P.J., MERCURE, PETERS, KAVANAGH and GARRY, JJ.MERCURE, J.

[73 A.D.3d 1387] Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 9, 2009, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.

[73 A.D.3d 1388] Defendant pleaded guilty to attempted burglary in the third degree, waived his right to appeal and was sentenced as a second felony offender to a prison term of 1 1/2 to 3 years. County Court also ordered defendant to pay restitution in the amount of $604.15. Defendant now appeals contending, among other things, that his plea was involuntary and he was entitled to a restitution hearing.

Preliminarily, we reject defendant's claim that his appeal waiver was invalid. County Court explained the nature of the right that defendant was waiving, and defendant affirmed his understanding of that right, indicated that he had been given sufficient time to confer with counsel and executed a detailed written waiver of the right to appeal. Under these circumstances, we are satisfied that defendant's waiver of the right to appeal was knowing, intelligent and voluntary ( see People v. Thomas, 71 A.D.3d 1231, 1231–1232, 896 N.Y.S.2d 264 [2010]; People v. Grant, 60 A.D.3d 1202, 1203, 875 N.Y.S.2d 347 [2009] ).

To the extent that defendant challenges the factual sufficiency of his plea, review of this issue is precluded by his valid waiver of the right to appeal ( see People v. Vaughns, 70 A.D.3d 1123, 1124, 894 N.Y.S.2d 234 [2010]; People v. Nesbitt, 23 A.D.3d 836, 837, 805 N.Y.S.2d 139 [2005], lv. denied 6 N.Y.3d 816, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006] ) and, further, is unpreserved due to defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Bethel, 69 A.D.3d 1126, 1127, 894 N.Y.S.2d 205 [2010]; People v. Harris, 51 A.D.3d 1335, 1336, 860 N.Y.S.2d 643 [2008], lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). Although defendant's claim that his plea was involuntary survives his waiver of appeal, this issue similarly is...