Opinion
2013-06-14
The PEOPLE of the State of New York, Respondent, v. Terrance F. LUCIEER, Defendant–Appellant. (Appeal No. 1.)
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego, for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego, for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of grand larceny in the fourth degree (Penal Law § 155.30[1] ). In appeal No. 2, defendant appeals from a judgment entered the same day as the judgment in appeal No. 1, revoking the sentence of probation imposed upon a previous conviction of grand larceny in the fourth degree ( id.), based upon his admitted violation of probation, and sentencing him to a term of incarceration. We reject defendant's contention that the waiver of the right to appeal is invalid. County Court “made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Graham, 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490,lv. denied15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
The contention of defendant in appeal No. 1 that he was denied effective assistance of counsel because his attorney failed to pursue an allegedly meritorious speedy trial motion does not survive his plea and valid waiver of the right to appeal inasmuch as defendant “failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance” ( People v. Paduano, 84 A.D.3d 1730, 1731, 922 N.Y.S.2d 726 [internal quotation marks omitted]; see People v. Slingerland, 101 A.D.3d 1265, 1267, 955 N.Y.S.2d 690,lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538;People v. Speranza, 96 A.D.3d 1164, 1165, 945 N.Y.S.2d 817). In any event, defendant did not have a meritorious speedy trial claim inasmuch as the People demonstrated “sufficient excludable time” to establish compliance with CPL 30.30( People v. Kendzia, 64 N.Y.2d 331, 338, 486 N.Y.S.2d 888, 476 N.E.2d 287;see People v. Walker, 27 A.D.3d 899, 900, 810 N.Y.S.2d 592,lv. denied7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261;see generally People v. Sweet, 79 A.D.3d 1772, 917 N.Y.S.2d 768). Defense counsel therefore “was not ineffective in failing to pursue a motion that had no chance of success” ( People v. Rivers, 67 A.D.3d 1435, 1436, 889 N.Y.S.2d 788,lv. denied14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110,reconsideration denied14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015;see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).
Defendant further contends that the court erred in ordering restitution based in part on the replacement cost, rather than the fair market value, of the stolen property. Although “[d]efendant's challenge to the amount of restitution is not foreclosed by his waiver of the right to appeal because the amount of restitution was not included in the terms of the plea agreement” ( People v. Tessitore, 101 A.D.3d 1621, 1622, 956 N.Y.S.2d 372,lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [internal quotation marks omitted]; see People v. Miller, 87 A.D.3d 1303, 1304, 930 N.Y.S.2d 143,lv. denied18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967), that contention is unpreserved for our review inasmuch as defendant did not object to the victim's valuation testimony or otherwise alert the sentencing court to his objection ( seeCPL 470.05[2] ). In any event, we conclude that the People established the amount of restitution by a preponderanceof the evidence, and there is no basis to disturb the restitution award ( seeCPL 400.30[4]; People v. Tzitzikalakis, 8 N.Y.3d 217, 221–222, 832 N.Y.S.2d 120, 864 N.E.2d 44;People v. LaVilla, 87 A.D.3d 1369, 1369–1370, 930 N.Y.S.2d 344;see generally People v. Periard, 15 A.D.3d 693, 694, 788 N.Y.S.2d 725).
Finally, defendant's valid waiver of the right to appeal encompasses his contention in both appeals that the sentence imposed pursuant to the plea agreement is unduly harsh and severe ( see People v. Rodman, 104 A.D.3d 1186, 1188, 960 N.Y.S.2d 784;Tessitore, 101 A.D.3d at 1621–1622, 956 N.Y.S.2d 372;see generally Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.