Opinion
586 KA 17–00613
06-28-2019
The PEOPLE of the State of New York, Respondent, v. Jorge A. FLORES RODRIGUEZ, Defendant–appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, 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, inter alia, identity theft in the first degree ( Penal Law § 190.80[1] ) and grand larceny in the third degree (§ 155.35[1] ). Contrary to his contention, defendant validly waived his right to appeal (see People v. Hoke, 167 A.D.3d 1549, 1549–1550, 90 N.Y.S.3d 452 [4th Dept. 2018], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 206, 123 N.E.3d 865 [2019] ; People v. Robinson, 112 A.D.3d 1349, 1349, 977 N.Y.S.2d 529 [4th Dept. 2013], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ). Defendant's contention that his plea was "not voluntarily entered because [he] provided only monosyllabic responses to [Supreme] Court's questions is actually a challenge to the factual sufficiency of the plea allocution" ( People v. Hendrix, 62 A.D.3d 1261, 1262, 878 N.Y.S.2d 532 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ), which is encompassed by the valid waiver of the right to appeal (see People v. Alsaifullah, 162 A.D.3d 1483, 1485, 77 N.Y.S.3d 811 [4th Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018] ).
Defendant's contention that the amount of restitution imposed by the court is unsupported by the record survives the valid waiver of the right to appeal inasmuch as restitution was not included in the terms of the plea agreement (see generally People v. Jorge N.T., 70 A.D.3d 1456, 1457, 894 N.Y.S.2d 625 [4th Dept. 2010], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010] ). We nonetheless conclude that defendant failed to preserve for our review his contention that the amount of restitution ordered lacks a record basis inasmuch as he "fail[ed] to object to the imposition of restitution at sentencing or to request a hearing" ( People v. Meyer, 156 A.D.3d 1421, 1421, 65 N.Y.S.3d 883 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ; see People v. Butler, 170 A.D.3d 1496, 1497, 94 N.Y.S.3d 512 [4th Dept. 2019] ). Moreover, defendant waived that contention because he "expressly consented to the amount of restitution" ordered ( People v. Lewis, 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; see Butler, 170 A.D.3d at 1497 ). Finally, the valid waiver of the right to appeal encompasses defendant's challenge to the severity of his sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).