People v. Schmiege, 275

• Decision Date: 03 May 2019
• Docket Number: 275,KA 18–00520
• Citation: 172 A.D.3d 1897,97 N.Y.S.3d 903 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian E. SCHMIEGE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1897

97 N.Y.S.3d 903 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Brian E. SCHMIEGE, Defendant–Appellant.

275

KA 18–00520

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

Entered: May 3, 2019

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

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

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

MEMORANDUM AND ORDER

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 attempted burglary in the third degree ( Penal Law §§ 110.00, 140.20 ). Defendant validly waived his right to appeal (see People v. Johnson , 169 A.D.3d 1480, 1481, 91 N.Y.S.3d 910 [4th Dept. 2019], lv. denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Mar. 27, 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 appeal waiver (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] ).

Finally, defendant argues that the court violated the plea bargain by imposing $ 3,700 in restitution instead of the $ 1,850 mentioned during the plea colloquy. Although that argument survives defendant's valid appeal waiver (see People v. Copes , 145 A.D.3d 1639, 1639, 44 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 1182, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ), it is nevertheless unpreserved for appellate review (see People v. Wilson , 289 A.D.2d 1088, 1088, 735 N.Y.S.2d 463 [4th Dept. 2001], lv denied 98 N.Y.2d 656, 745 N.Y.S.2d 516, 772 N.E.2d 619 [2002] ; see generally People v. Williams , 27 N.Y.3d 212, 219–225, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see People v. Hoke , 167 A.D.3d 1549, 1550, 90 N.Y.S.3d 452 [4th Dept. 2018], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Mar. 26, 2019] ; Wilson , 289 A.D.2d at 1088, 735 N.Y.S.2d 463 ).