Opinion
2012-12-20
The PEOPLE of the State of New York, Respondent, v. Frank C. LEONE Jr., Appellant.
Ameer Benno, Albany, for appellant. Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
Ameer Benno, Albany, for appellant. Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.
Before: PETERS, P.J., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered June 15, 2010, convicting defendant upon his plea of guilty of the crimes of grand larceny in the fourth degree and forgery in the second degree.
Defendant waived indictment, as well as his right to appeal, and pleaded guilty to a superior court information charging him with grand larceny in the fourth degree and forgery in the second degree. Defendant thereafter was sentenced as a second felony offender to the recommended prison term of 2 to 4 years for each crime—said sentences to be served consecutively—and ordered to pay, among other things, restitution and the statutory surcharge. This appeal ensued.
We affirm. Defendant's challenge to the factual sufficiency of his plea is precluded by his valid waiver of the right to appeal and, further, is unpreserved for our review absent evidence on this record that defendant moved to withdraw his plea or vacate the judgment of conviction ( see People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lvs. denied19 N.Y.3d 973, 974, 950 N.Y.S.2d 356, 357, 973 N.E.2d 766, 767 [2012]; People v. Planty, 85 A.D.3d 1317, 1317–1318, 925 N.Y.S.2d 240 [2011],lv. denied17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Although defendant's assertion that his plea was involuntary survives his waiver of appeal, this claim also is unpreserved for our review in the absence of an appropriate postallocution motion ( see People v. Wicks, 83 A.D.3d 1223, 1224, 920 N.Y.S.2d 488 [2011],lv. denied17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011];People v. Thomas, 81 A.D.3d 997, 998, 916 N.Y.S.2d 648 [2011],lv. denied16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ). The narrow exception to the preservation rule has not been triggered here, as defendant did not make any statements during the course of the plea allocution that negated an essential element of the crimes charged or otherwise called into question his guilt ( see People v. White, 96 A.D.3d 1299, 1300, 946 N.Y.S.2d 717 [2012],lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012];People v. Klages, 90 A.D.3d 1149, 1150, 934 N.Y.S.2d 259 [2011],lv. denied18 N.Y.3d 925, 942 N.Y.S.2d 464, 965 N.E.2d 966 [2012] ).
As for the issue of restitution, contrary to defendant's present claim, “the record before us makes clear that restitution indeed was part of the underlying plea agreement” ( People v. Smith, 100 A.D.3d 1102, 1102, 953 N.Y.S.2d 377, 378 [2012] ). Further, although defendant's challenge to the amount of restitution actually ordered survives his otherwise valid waiver of the right to appeal because the plea agreement was silent on this point, his current challenge to the sum imposed—as well as his claim that such amount lacks sufficient support in the record—is unpreserved for our review in light of his failure to request a hearing or otherwise contest the sum imposed at the time of sentencing ( see People v. Smith, 953 N.Y.S.2d at 378;People v. Vasavada, 93 A.D.3d 893, 894, 938 N.Y.S.2d 924 [2012],lv. denied19 N.Y.3d 978, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012] ). Finally, “we do not require that a defendant be advised, prior to his or her plea, that the statutory surcharge is a part of the sentence” ( People v. Salmans, 49 A.D.3d 961, 962, 853 N.Y.S.2d 675 [2008] ). Accordingly, defendant's argument on this point must fail.
ORDERED that the judgment is affirmed.