People v. Hall

• Decision Date: 28 January 2016
• Citation: 23 N.Y.S.3d 725,135 A.D.3d 1246
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew J. HALL, Appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1246

23 N.Y.S.3d 725

The PEOPLE of the State of New York, Respondent,

v.Matthew J. HALL, Appellant.

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

Jan. 28, 2016.

Matthew J. Hall, Malone, appellant pro se.

Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH and CLARK, JJ.

EGAN JR., J.

Appeals (1) from a judgment of the County Court of Essex County (Meyer, J.), rendered May 16, 2014, convicting defendant on his plea of guilty of the crime of grand larceny in the second degree, and (2) by permission, from an order of said court, entered December 24, 2014, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

Pursuant to a written plea agreement, defendant waived indictment and entered a guilty plea to grand larceny in the second degree as charged in a superior court information. The charge stemmed from defendant's theft of cash from his employer and two of its customers between 2006 and 2012. Under the terms of the plea agreement, defendant waived his right to appeal and agreed to pay restitution in the amount of $143,895.75; sentencing was left to the discretion of County Court. The court thereafter imposed a prison sentence of 5 to 15 years and ordered that defendant pay the agreed-upon restitution, with a surcharge. Defendant's subsequent motion to set aside the sentence pursuant to CPL 440.20 was denied, without a hearing. Defendant now appeals from both the judgment of conviction and, by permission, from the order denying his CPL 440.20 motion.

We affirm. Defendant's claim that the sentence imposed is harsh and excessive is precluded by his unchallenged oral and written waiver of appeal (see People v. Smalls, 128 A.D.3d 1281, 1282, 8 N.Y.S.3d 614 [2015] ). With regard to the amount of restitution imposed, defendant expressly consented to pay the specified amount as part of the plea agreement and waived his right to a hearing; hence, any challenge to the amount ordered is both precluded by his appeal waiver and unpreserved for our review (see People v. Campo, 125 A.D.3d 1058, 1059, 999 N.Y.S.2d 774 [2015], lv. denied 25 N.Y.3d 1070, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ).

Defendant further argues that his motion pursuant to CPL 440.20 to set aside his sentence should have been granted because County Court imposed an impermissible amount of restitution without permitting him to withdraw his plea and, further, imposed a surcharge that was not included in the terms of the plea agreement.¹ With regard to the $15,000 statutory cap on restitution, it applies "[e]xcept upon consent of the defendant" (Penal Law § 60.27[5][a] ). Here, as part of the plea agreement, defendant expressly agreed to the pay restitution and consented to the amount ordered after being advised of the cap and, thus, the restitution order did not violate Penal Law § 60.27(5)(a). We similarly reject defendant's contention that the surcharge imposed on the restitution amount was illegal and violated the plea agreement, as a surcharge is mandatory under Penal Law § 60.27(8). Further, given the affidavit submitted by the Acting Director of the Essex County Probation Department regarding the additional costs associated with administering this restitution order, a 10% surcharge was authorized by Penal Law § 60.27(8) (see People v. Pratt, 77 A.D.3d 1337, 1337–1338, 908 N.Y.S.2d 493 [2010], lv. denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ; comp...