Opinion
01-15-2015
The PEOPLE of the State of New York, Respondent, v. Joseph STRONG, Appellant.
Jane M. Bloom, Monticello, for appellant. James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), for respondent.
Jane M. Bloom, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and CLARK, JJ.
CLARK, J. Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered December 5, 2012, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (seven counts).
Defendant pleaded guilty to burglary in the second degree (seven counts) and waived his right to appeal. County Court thereafter sentenced him to an aggregate prison term of eight years, to be followed by five years of postrelease supervision. County Court further ordered that defendant pay restitution in the amount of $6,939.09. Defendant now appeals.
Initially, defendant's challenge to the factual sufficiency of his plea is precluded both by his valid appeal waiver and his failure to make an appropriate postallocution motion (see People v. Mydosh, 117 A.D.3d 1195, 1196, 984 N.Y.S.2d 687 [2014], lv. denied 24 N.Y.3d 963, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014] ; People v. Durham, 110 A.D.3d 1145, 1145, 973 N.Y.S.2d 425 [2013] ). Contrary to defendant's contention, we find that his statements during the plea allocution did not cast doubt upon his guilt or negate an essential element of the crimes as to trigger the narrow exception to the preservation rule (see People v. MacDonald, 113 A.D.3d 968, 978 N.Y.S.2d 912 [2014] ; People v. Harrison, 66 A.D.3d 1057, 1057–1058, 885 N.Y.S.2d 442 [2009] ).
Although defendant does not challenge the validity of his appeal waiver, our review of the record confirms that his oral and written waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ).
Inasmuch, however, as the record before us does not demonstrate that the payment of restitution was part of defendant's plea bargain, County Court should not have imposed the enhanced sentence without first giving defendant an opportunity to withdraw his plea (see People v. Culcleasure, 75 A.D.3d 832, 832, 905 N.Y.S.2d 682 [2010] ; People v. Branch–El, 12 A.D.3d 785, 786, 784 N.Y.S.2d 225 [2004], lvs. denied 4 N.Y.3d 761, 792 N.Y.S.2d 5, 825 N.E.2d 137 [2005], 4 N.Y.3d 763, 792 N.Y.S.2d 6, 825 N.E.2d 138 [2005] ). Accordingly, the sentence must be vacated and the matter remitted to County Court for that purpose or, alternatively, the imposition of the promised sentence (see People v. Culcleasure, 75 A.D.3d at 833, 905 N.Y.S.2d 682 ; People v. Pickens, 45 A.D.3d 1187, 1188, 846 N.Y.S.2d 469 [2007], lvs. denied 10 N.Y.3d 769, 854 N.Y.S.2d 331, 883 N.E.2d 1266 [2008] ). Moreover, the People concede, and we agree, that County Court failed to make a youthful offender determination upon sentencing (see People v. Rudolph, 21 N.Y.3d 497, 499–503, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ; People v. Calkins, 119 A.D.3d 975, 975–976, 989 N.Y.S.2d 183 [2014] ). Accordingly, upon remittal, County Court must also address this issue. Finally, defendant's challenge to the length of his sentence as harsh and excessive is precluded by his waiver of the right to appeal (see People v. Fisher, 119 A.D.3d 1289, 989 N.Y.S.2d 918 [2014], lv. denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; People v. Cabezas, 307 A.D.2d 594, 595, 762 N.Y.S.2d 540 [2003], lv. denied 100 N.Y.2d 618, 767 N.Y.S.2d 401, 799 N.E.2d 624 [2003] ).
We note that neither defendant's appeal waiver nor his failure to object to the imposition of restitution at sentencing precludes our review of this issue (see People v. Culcleasure, 75 A.D.3d at 832, 905 N.Y.S.2d 682 ).
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ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
LAHTINEN, J.P., McCARTHY, ROSE and LYNCH, JJ., concur.