People v. Smith
| Citation | 2012 N.Y. Slip Op. 07332,100 A.D.3d 1102,953 N.Y.S.2d 377 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Louis J. SMITH Jr., Appellant. |
| Decision Date | 08 November 2012 |
| Court | New York Supreme Court Appellate Division |
100 A.D.3d 1102
953 N.Y.S.2d 377
2012 N.Y. Slip Op. 07332
The PEOPLE of the State of New York, Respondent,
v.
Louis J. SMITH Jr., Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Nov. 8, 2012.
Alexander Lesyk, Norwood, for appellant.
Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: PETERS, P.J., ROSE, SPAIN, McCARTHY and EGAN JR., JJ.
EGAN JR., J.
[100 A.D.3d 1102]Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered March 22, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with burglary in the third degree. Pursuant to the negotiated plea, defendant agreed to waive his right to appeal, admit his status as a second felony offender and pay an unspecified sum of restitution; in return, County Court agreed to sentence defendant to a prison term of 2 to 4 years. Insofar as is relevant here, the plea was conditioned upon defendant abstaining from the use of drugs—including marihuana—while he was released to probation supervision pending sentencing. Notably, County Court expressly advised defendant that if he violated any of the terms of his probation, the court could impose a sentence of 3 1/2 to 7 years in prison. After defendant tested positive for marihuana, County Court sentenced defendant as a second felony offender to 3 to 6 years in prison and ordered restitution in the amount of $27,900. This appeal by defendant ensued.
We affirm. Contrary to defendant's assertion, the record before us makes clear that restitution indeed was part of the underlying plea agreement ( compare People v. McDowell, 56 A.D.3d 955, 956, 868 N.Y.S.2d 779 [2008];People v. Harrington, 3 A.D.3d 737, 738–739, 770 N.Y.S.2d 792 [2004] )—a finding that is in no way altered by the brief recess in the proceedings that occurred between County Court's recitation of the terms of the plea and defendant's subsequent acceptance thereof. To the extent that defendant takes issue with the actual amount of restitution imposed, we initially note that inasmuch as the underlying plea agreement did not specify the sum of restitution to be awarded, defendant's challenge to the resulting restitution order is not precluded by his otherwise valid waiver of the right to appeal ( see People v. Planty, 85 A.D.3d 1317,...
To continue reading
Request your trial
-
People v. Garrow
...117 A.D.3d 1237, 1238, 986 N.Y.S.2d 255 [2014], lv. denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; People v. Smith, 100 A.D.3d 1102, 1103, 953 N.Y.S.2d 377 [2012] ; People v. Coffey, 77 A.D.3d 1202, 1203–1204, 910 N.Y.S.2d 206 [2010], lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 752......
-
People v. Ortiz
...N.Y.3d 993, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016] ; People v. Gardner, 129 A.D.3d 1386, 1388, 12 N.Y.S.3d 353 [2015] ; People v. Smith, 100 A.D.3d 1102, 1102, 953 N.Y.S.2d 377 [2012] ). "In seeking restitution, the People bore the burden of demonstrating the amount of the victim's out-of-p......
-
People v. Villnave
...abuse of discretion in County Court's refusal to recommend defendant's placement in a shock incarceration program ( see People v. Smith, 100 A.D.3d 1102, 1103, 953 N.Y.S.2d 377 [2012];People v. Augustine, 265 A.D.2d 671, 672, 697 N.Y.S.2d 698 [1999] ). Nor do we find that County Court abuse......
-
People v. Gardner
...101 A.D.3d 1352, 1353, 956 N.Y.S.2d 289 [2012], lv. denied 21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [2013] ; People v. Smith, 100 A.D.3d 1102, 1102, 953 N.Y.S.2d 377 [2012] ). While the claim was not preserved for our review inasmuch as defendant did not request a hearing or otherwis......