Opinion
667 KA 16–02225
06-14-2019
The PEOPLE of the State of New York, Respondent, v. Zacharie HICKS, Defendant–appellant.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT–APPELLANT. TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT–APPELLANT.
TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the designated surcharge and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ). The People correctly concede that County Court erred in directing as part of the disposition that defendant pay a designated surcharge on the amount of restitution imposed in favor of the law enforcement agency that expended funds in the purchase of a controlled substance from defendant (see § 60.27[8], [9]; People v. Boatman, 110 A.D.3d 1463, 1464, 972 N.Y.S.2d 780 [4th Dept. 2013], lv denied 22 N.Y.3d 1039, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ). Penal Law § 60.27(9) provides that "[a]ny restitution which may be required to be made to a law enforcement agency pursuant to this section ... shall not include a designated surcharge." We therefore modify the judgment accordingly (see People v. Works, 170 A.D.3d 1670, 1671, 94 N.Y.S.3d 912 [4th Dept. 2019] ; id. at 1671–1672, 94 N.Y.S.3d 912 [NeMoyer & Curran, JJ., concurring] ). Contrary to defendant's contention, we conclude that the record establishes that the court "conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ..., and that [t]he plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Livermore, 161 A.D.3d 1569, 1569, 76 N.Y.S.3d 732 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] [internal quotation marks omitted]; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Further, defendant's contention that the explanations of the waiver provided in the oral colloquy and written waiver were inconsistent or confusing is without merit (see People v. Walker, 151 A.D.3d 1730, 1731, 57 N.Y.S.3d 806 [4th Dept. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 685, 86 N.E.3d 577 [2017], reconsideration denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ), and "there is no indication in the record that he was confused when he waived his right to appeal" ( People v. Cunningham, 158 A.D.3d 1257, 1258, 68 N.Y.S.3d 369 [4th Dept. 2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ). Nonetheless, the valid waiver of the right to appeal does not preclude defendant from challenging the severity of the sentence inasmuch as the court's "statements concerning the maximum sentence that could be imposed were inconsistent, confusing and misleading" ( People v. Boyzuck, 72 A.D.3d 1530, 1530, 900 N.Y.S.2d 530 [4th Dept. 2010] ; see People v. Faircloth, 162 A.D.3d 789, 790, 74 N.Y.S.3d 871 [2d Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 204, 123 N.E.3d 863, 2019 WL 1581555 [2019] ; see generally People v. Eron, 79 A.D.3d 1774, 1775, 914 N.Y.S.2d 849 [4th Dept. 2010] ). We conclude, however, that the sentence is not unduly harsh or severe.