People v. Schmiege

• Decision Date: 28 June 2019
• Docket Number: 270,KA 18–00522
• Citation: 173 A.D.3d 1824,104 N.Y.S.3d 458
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian E. SCHMIEGE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1824
104 N.Y.S.3d 458

The PEOPLE of the State of New York, Respondent,
v.
Brian E. SCHMIEGE, Defendant–Appellant.

270
KA 18–00522

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

Entered: June 28, 2019

ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT–APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

104 N.Y.S.3d 460

MEMORANDUM AND ORDER

173 A.D.3d 1824

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of auto stripping in the second degree ( Penal Law § 165.10[2] ). Defendant validly waived his

173 A.D.3d 1825

right to appeal (see People v. Johnson, 169 A.D.3d 1480, 1481, 91 N.Y.S.3d 910 [4th Dept. 2019], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 164, 123 N.E.3d 823 [2019] ; People v. Link, 166 A.D.3d 1581, 1581, 85 N.Y.S.3d 902 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 586, 121 N.E.3d 213 [2019] ), and that waiver forecloses his challenge to the severity of both the incarceration and restitution components of his sentence (see Johnson, 169 A.D.3d at 1481, 91 N.Y.S.3d 910 ; People v. Kesick, 119 A.D.3d 1371, 1372, 988 N.Y.S.2d 395 [4th Dept. 2014] ; see generally People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170 [1993] ).

Defendant's further contention that Supreme Court violated CPL 430.10 by imposing restitution after the conclusion of the sentencing hearing implicates the legality of his sentence and thus survives his valid waiver of the right to appeal (see People v. Moore, 124 A.D.3d 1386, 1387, 1 N.Y.S.3d 693 [4th Dept. 2015] ; People v. Carpenter, 19 A.D.3d 730, 731, 796 N.Y.S.2d 730 [3d Dept. 2005], lv denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156 [2005] ; see generally People v. Campbell, 97 N.Y.2d 532, 535, 743 N.Y.S.2d 396, 769 N.E.2d 1288 [2002] ). Nevertheless, that contention lacks merit because CPL 430.10 applies only to the incarceration component of a sentence, not to the restitution component (see Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 356, 653 N.Y.S.2d 237, 675 N.E.2d 1189 [1996] ; People v. Johnson, 208 A.D.2d 1175, 1175–1176, 617 N.Y.S.2d 938 [3d Dept. 1994], lv denied 85 N.Y.2d 910, 627 N.Y.S.2d 333, 650 N.E.2d 1335 [1995] ). Indeed, it is well established that a court may impose restitution within a reasonable time after the sentencing hearing if, as here, the People announce their intent to seek restitution during that hearing (see People v. Swiatowy, 280 A.D.2d 71, 73, 721 N.Y.S.2d 185 [4th Dept. 2001], lv denied 96 N.Y.2d 868, 730 N.Y.S.2d 43, 754 N.E.2d 1126 [2001] ).

Defendant next contends that his plea was involuntary because the court failed to inform him of a purportedly direct consequence thereof, i.e., the fact that a guilty plea would constitute a violation of his probation in another case. Although that contention survives defendant's valid waiver of the right to appeal (see generally People v. Empey, 144 A.D.3d 1201, 1203, 41 N.Y.S.3d 164 [3d Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ), it is without merit because the plea's effect on defendant's probationary status in another case is merely...