People v. Iii

• Decision Date: 09 June 2011
• Citation: 925 N.Y.S.2d 240,2011 N.Y. Slip Op. 04777,85 A.D.3d 1317
• Parties: The PEOPLE of the State of New York, Respondent,v.Herbert M. PLANTY III, Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1317

925 N.Y.S.2d 240

2011 N.Y. Slip Op. 04777

The PEOPLE of the State of New York, Respondent,

v.Herbert M. PLANTY III, Appellant.

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

June 9, 2011.

John A. Cirando, Syracuse, for appellant.Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), for respondent.Before: ROSE, J.P., MALONE JR., McCARTHY, GARRY and EGAN JR., JJ.EGAN JR., J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 1, 2010, convicting defendant upon his plea of guilty of the crime of criminal mischief in the fourth degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to one count of criminal mischief in the fourth degree, waived his right to appeal and was sentenced to one year in the local jail and ordered to pay restitution in the amount of $1,561.30. Defendant now appeals contending, among other things, that his plea was involuntary.

We affirm. Preliminarily, we reject defendant's assertion that his waiver of the right to appeal was invalid. County Court's explanation of the waiver, together with defendant's execution of a detailed written waiver in open court, sufficiently apprised defendant of the appellate rights he was forfeiting. Further, in response to County Court's questioning, defendant indicated that he understood the nature and ramifications of the waiver and confirmed that he had been afforded sufficient time to confer with counsel. Finally, [t]he waiver of appeal was not rendered invalid as a result of County Court's failure to expressly recite, as set forth in the written waiver of appeal executed by defendant in open court, that it would only accept a plea if defendant waived his right to appeal ( People v. White, 84 A.D.3d 1641, 923 N.Y.S.2d 371, 372 [2011] ). We therefore find that defendant knowingly, intelligently and voluntarily waived his right to appeal ( see People v. Dishaw, 81 A.D.3d 1035, 1036, 916 N.Y.S.2d 295 [2011], lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011]; People v. Thomas, 81 A.D.3d 997, 998, 916 N.Y.S.2d 648 [2011]; People v. Minter, 71 A.D.3d 1335, 1335–1336, 896 N.Y.S.2d 697 [2010], lv. denied 15 N.Y.3d 754, 906 N.Y.S.2d 827, 933 N.E.2d 226 [2010] ).

Defendant's challenge to the factual sufficiency of his plea is foreclosed by his valid waiver of the right to appeal and, further, is unpreserved for our review due to his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Richardson, 83 A.D.3d 1290, 1291, 920 N.Y.S.2d 752 [2011]; People v. Dishaw, 81 A.D.3d at 1036, 916 N.Y.S.2d 295; People v. Caldwell, 80 A.D.3d 998, 998, 914 N.Y.S.2d 688 [2011], lv. denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ). To the extent that defendant challenges the voluntariness of his plea, although this claim survives his waiver of the right to appeal, it, too, is unpreserved for our review in light of defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Wicks, 83 A.D.3d 1223, 1224, 920 N.Y.S.2d 488 [2011]; People v. Thomas, 81 A.D.3d at 998, 916 N.Y.S.2d 648; People v. Singh, 73 A.D.3d 1384, 1384–1385, 901 N.Y.S.2d 428 [2010], lv. denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010] ). Moreover, the narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea ( see People v. Caldwell, 80 A.D.3d at 998, 914 N.Y.S.2d 688; People v. Terpening, 79 A.D.3d 1367, 1367–1368, 912 N.Y.S.2d 776 [2010], lv. denied 16 N.Y.3d 837, 921 N.Y.S.2d 201, 946 N.E.2d 189 [2011]; People v. Board, 75 A.D.3d 833, 833, 906 N.Y.S.2d 155 [2010] ).

Defendant's ineffective assistance of counsel claim, insofar as it impacts upon the voluntariness of his plea and, hence, survives the waiver of appeal, also is unpreserved for our review due to the absence of an appropriate postallocution motion ( see People v. Small, 82 A.D.3d 1451, 1452, 918 N.Y.S.2d 755 [2011]; People v. Smith, 81 A.D.3d 1034, 1035, 916 N.Y.S.2d 293 [2011]; People v. Rivera, 78 A.D.3d 1423, 1424, 912 N.Y.S.2d 450 [2010] ). To the degree that defendant's ineffective assistance of counsel claim implicates matters outside the record, such issues are more properly addressed in the context of a CPL article 440 motion ( see People v. Terpening, 79 A.D.3d at 1368, 912 N.Y.S.2d 776; People v. Lopez, 74 A.D.3d 1498, 1499, 902 N.Y.S.2d 230 [2010] ).

As to the issue of restitution, because the underlying plea agreement did not specify the amount of restitution to be awarded, defendant may challenge the restitution order notwithstanding his waiver of the right to appeal ( see People v. Stevens, 80 A.D.3d 791, 792, 914 N.Y.S.2d 412 [2011]; People v. Ford, 77 A.D.3d 1176, 1176, 910 N.Y.S.2d 235 [2010]; People v. Travis, 64 A.D.3d 808, 808, 882 N.Y.S.2d 530 [2009] ). However, defendant's assertion that the amount of restitution awarded by County Court lacks support in the record is unpreserved for our review given defendant's failure to request a hearing or otherwise contest the sum awarded at sentencing ( see People v. Empey, 73 A.D.3d 1387, 1389, 901 N.Y.S.2d 756 [201...