People v. Secore
| Citation | 102 A.D.3d 1057,2013 N.Y. Slip Op. 00519,958 N.Y.S.2d 536 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Brandon M. SECORE, Appellant. |
| Decision Date | 31 January 2013 |
| Court | New York Supreme Court Appellate Division |
102 A.D.3d 1057
958 N.Y.S.2d 536
2013 N.Y. Slip Op. 00519
The PEOPLE of the State of New York, Respondent,
v.
Brandon M. SECORE, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Jan. 31, 2013.
[958 N.Y.S.2d 537]
John A. Cirando, Syracuse, for appellant.
Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.
McCARTHY, J.
[102 A.D.3d 1057]Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 24, 2011, which revoked defendant's probation and imposed a sentence of imprisonment.
The background facts of this case are more fully set forth in the companion case involving defendant ( People v. Secore, 102 A.D.3d 1059, 958 N.Y.S.2d 538 [2013] [decided herewith] ). As is relevant here, defendant was sentenced in 2008 to a five-year term of probation upon his plea of guilty to the crime of grand larceny in the [102 A.D.3d 1058]fourth degree arising from his unauthorized use of a credit card. While on probation, he was charged with additional crimes, including forgery in the second degree. He subsequently pleaded guilty to the forgery charge as well as to violating the conditions of his probation, and waived his right to appeal. In return, he was accepted into the judicial diversion program ( see CPL art. 216), which required him to participate in an intensive drug and alcohol treatment program in lieu of being sentenced to prison. Defendant, however, did not successfully complete the program, admitted his violations and waived his right to a hearing. As a result, County Court, among other things, revoked his probation and resentenced him as a second felony offender to 1 1/3 to 4 years in prison. The court also ordered him to pay restitution in the amount of $1,967.55, plus a 10% collection surcharge of $196.76 for a total of $2,164.31. Defendant now appeals.
Defendant challenges the validity of his plea of guilty to violating the conditions of his probation and County Court's award of restitution as well as the 10% surcharge. Initially, defendant entered into the same waiver of his right to appeal with respect to the probation violation that he did with respect to the forgery charge. As we note in the companion case, the waiver was not valid because it is not clear from the record that defendant fully understood that such right was separate and distinct from the other rights he was forfeiting by his...
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