Opinion
10-05-2017
The PEOPLE of the State of New York, Respondent, v. Ryan HAINES, Appellant.
Donnial K. Hinds, Albany, for appellant. James R. Farrell, District Attorney, Monticello (Richard K. Caister Jr. of counsel), for respondent.
Donnial K. Hinds, Albany, for appellant.
James R. Farrell, District Attorney, Monticello (Richard K. Caister Jr. of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, ROSE, MULVEY and RUMSEY, JJ.
ROSE, J.
Defendant was arrested for unlawfully entering a residence and stealing approximately $7,000. After executing a waiver of indictment and a detailed, written waiver of appeal, defendant orally waived his right to appeal and pleaded guilty to burglary in the second degree as charged in a superior court information. The plea agreement provided that defendant would receive a prison sentence of 6 ½ years followed by five years of postrelease supervision. As part of the plea agreement, the People promised that if defendant made restitution in the amount of $2,000 prior to sentencing, they would recommend a prison sentence of five years followed by five years of postrelease supervision. Defendant failed to make any restitution payments and, consistent with the plea agreement, County Court imposed, among other things, a prison sentence of 6 ½ years followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's due process claim that County Court should not have imposed the agreed-upon 6 ½–year prison term without first conducting an indigency hearing, as well as his claim that such sentence was harsh and excessive, are precluded by his unchallenged—and, in any event, valid—appeal waiver (see People v. Lyman, 119 A.D.3d 968, 969–970, 988 N.Y.S.2d 717 [2014], lv. denied 27 N.Y.3d 1153, 39 N.Y.S.3d 387, 62 N.E.3d 127 [2016] ; People v. Long, 117 A.D.3d 1326, 1326–1327, 986 N.Y.S.2d 670 [2014], lv. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014] ). Moreover, by not bringing his due process claim to the attention of the court at the time of sentencing or making a motion to withdraw his plea, defendant failed to preserve his claim for our review (see People v. Rushlow, 137 A.D.3d 1482, 1483, 28 N.Y.S.3d 476 [2016] ; People v. Bassoff, 51 A.D.3d 682, 683, 857 N.Y.S.2d 664 [2008], lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 392, 894 N.E.2d 656 [2008] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., McCARTHY, MULVEY and RUMSEY, JJ., concur.