People v. Rubio

• Decision Date: 19 November 2015
• Citation: 133 A.D.3d 1041,20 N.Y.S.3d 666
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher RUBIO, Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1041

20 N.Y.S.3d 666

The PEOPLE of the State of New York, Respondent,

v.Christopher RUBIO, Appellant.

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

Nov. 19, 2015.

Cliff Gordon, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), for respondent.

Before: McCARTHY, J.P., ROSE, DEVINE and CLARK, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 19, 2013, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and criminal possession of a weapon in the second degree.

In September 2013, defendant pleaded guilty to one count of burglary in the second degree and one count of criminal possession of a weapon in the second degree in full satisfaction of a seven-count indictment upon his admission that he, acting in concert with another individual, entered a residence, stole five handguns and, thereafter, possessed a loaded handgun without permission or license to do so. In exchange for a sentence of imprisonment of not less than seven years but no more than 10 years followed by five years of postrelease supervision, defendant agreed to sign a separate and distinct waiver of appeal in open court. At sentencing, the People informed County Court that there was an insurance claim of $400 for damage to the homeowner's gun case and $2,400 for the stolen handguns. County Court sentenced defendant to a prison term of 10 years, followed by five years of postrelease supervision, and imposed $2,800 in restitution. Defendant appeals.

Initially, we reject defendant's assertion that County Court did not properly ensure that defendant knowingly, voluntarily and intelligently waived his right to appeal. A review of the plea minutes reveals that County Court explained to defendant that he was waiving his right to appeal, that defendant explicitly waived his appeal rights without qualification during the allocution and that he was advised by the court that the appeal waiver was separate and distinct from those rights that he forfeited by his guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Spellicy, 123 A.D.3d 1228, 1229, 998 N.Y.S.2d 519 [2014], lv. denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ). Defendant also executed a written appeal waiver, which adequately described the scope of the appellate rights waived and which included defendant's acknowledgment that he was knowingly, voluntarily and intelligently waiving those rights after having been given sufficient time to discuss the consequences of the waiver with counsel (see People v. Tyler, 130 A.D.3d 1383, 1384, 14 N.Y.S.3d 570 [2015] ; People v. Turner, 126 A.D.3d 1228, 1229, 5 N.Y.S.3d 612 [2015] ). Consequently, the valid waiver precludes review of his challenge to the sentence as harsh and excessive (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Jackson, 129 A.D.3d 1342, 1342, 10 N.Y.S.3d 368 [2015] ).

Next, defendant argues that, because the plea bargain did not include restitution, County Court erred in ordering restitution and in failing to conduct a restitution hearing. Preliminarily, under the circumstances presented, we note that neither defendant's appeal waiver (see People v. Skerritt, 128 A.D.3d 1110, 1111, 8 N.Y.S.3d 709 [2015] ; People v. Culcleasure, 75 A.D.3d 832, 832, 905 N.Y.S.2d 682 [2010] ; People v. Thomas, 71 A.D.3d 1231, 1232, 896 N.Y.S.2d 264 [2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ; People v. Travis, 64 A.D.3d 808, 808, 882 N.Y.S.2d 530 [2009] ) nor his failure to preserve this issue through an objection at sentencing (see People v. Culcleasure, 75 A.D.3d at 832, 905 N.Y.S.2d 682 ; People v. McDowell, 56 A.D.3d 955, 956, 868 N.Y.S.2d 779 [2008] ; People v. Snyder, 23 A.D.3d 761, 762–763, 803 N.Y.S.2d 779 [2005] ) is fatal to the claim. Turning to the merits, "[w]here ... a plea agreement does not include mention of restitution, a defendant must be given the opportunity to either withdraw his [or her] plea or accept the greater sentence of restitution" (People v. Snyder, 23 A.D.3d at 762, 803 N.Y.S.2d 779 [internal quotation marks and citation omitted]; see People v. McDowell, 56 A.D.3d at 956, 868 N.Y.S.2d 779 ). Here, a review of the plea colloquy and the sentencing minutes reveals that no mention of restitution was made until the sentence was pronounced, and there is also no evidence in the record to substantiate the amount of restitution requested by the People and awarded by the court (see Penal Law § 60.27[2] ; People v. Stevens, 80 A.D.3d 791, 792, 914 N.Y.S.2d 412 [2011], lv. denied 16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ; People v. Travis, 64 A.D.3d at 808–809, 882 N.Y.S.2d 530 ). Indeed, defendant was first made aware that restitution would...