Opinion
2015-06035 Ind. No. 14-00663
03-06-2019
The PEOPLE, etc., Respondent, v. Edgar LUGO, Appellant.
Philip H. Schnabel, Chester, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.
Philip H. Schnabel, Chester, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the judgment is modified, on the law, by vacating the provisions thereof directing the defendant to make restitution in the sum of $ 73,000, plus a surcharge in the sum of $ 7,300; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for a hearing and new determination concerning the proper amounts of restitution and surcharge, and the manner of payment thereof.
The defendant was charged by indictment with attempted murder in the second degree and assault in the first degree. On January 8, 2015, the defendant entered a plea of guilty to assault in the first degree. During the plea allocution, the County Court told the defendant that "when [the court does] in fact impose sentence upon [him], [he] must waive and give up [his] right to appeal." On February 10, 2015, the court imposed sentence, including restitution in the sum of $ 73,000, plus a surcharge in the sum of $ 7,300. After the sentence was pronounced, the defendant executed the written waiver of the right to appeal, which was the subject of a voir dire conducted by the court. The defendant appeals.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid because the County Court's terse colloquy at the plea allocution suggested that waiving the right to appeal was mandatory, and the court failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving it (see People v. Brown, 122 A.D.3d 133, 137, 142, 992 N.Y.S.2d 297 ; People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889 ; People v. Salgado, 111 A.D.3d 859, 859, 975 N.Y.S.2d 172 ; People v. Nugent, 109 A.D.3d 625, 970 N.Y.S.2d 634 ). Furthermore, the defendant did not execute a written waiver of the right to appeal and the court did not conduct a voir dire with respect thereto until after the sentence was pronounced. These circumstances do not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal as a condition of his plea of guilty (see People v. Finnegan, 112 A.D.3d 847, 976 N.Y.S.2d 231 ; People v. Gil, 109 A.D.3d 484, 970 N.Y.S.2d 88 ). Accordingly, the appeal waiver may not be enforced (see People v. Finnegan, 112 A.D.3d 847, 976 N.Y.S.2d 231 ; People v. Gil, 109 A.D.3d at 485, 970 N.Y.S.2d 88 ; see also People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). In any event, the defendant's contentions that the restitution order and surcharge were not lawfully imposed survive a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Martinez, 144 A.D.3d 708, 39 N.Y.S.3d 810 ; People v. Casiano, 8 A.D.3d 761, 762, 779 N.Y.S.2d 259 ).
As correctly conceded by the People, the County Court should not have summarily ordered restitution in the sum of $ 73,000 absent a proper factual record from which the amount of medical expenses actually incurred by the injured victim could be inferred (see Penal Law § 60.27[5][a], [b] ; People v. Consalvo, 89 N.Y.2d 140, 145–146, 651 N.Y.S.2d 963, 674 N.E.2d 672 ; People v. Fuller, 57 N.Y.2d 152, 158–159, 455 N.Y.S.2d 253, 441 N.E.2d 563 ; People v. Martinez, 144 A.D.3d 708, 39 N.Y.S.3d 810 ; People v. Rodriguez, 73 A.D.3d 815, 817, 900 N.Y.S.2d 402 ; People v. Vella, 176 A.D.2d 768, 574 N.Y.S.2d 825 ). Thus, so much of the judgment as directed the defendant to make restitution, plus a surcharge, must be vacated and the matter remitted to the sentencing court for a hearing and a new determination as to whether the defendant should be required to make restitution, plus the authorized surcharge, and, if so, the proper amount and the manner of payment (see People v. Martinez, 144 A.D.3d 708, 39 N.Y.S.3d 810 ; People v. Rodriguez, 73 A.D.3d at 817, 900 N.Y.S.2d 402 ; People v. Vella, 176 A.D.2d 768, 574 N.Y.S.2d 825 ).
Contrary to the defendant's contention, the County Court was authorized to impose a surcharge of 10% of the total amount of restitution ordered rather than the surcharge of 5% that is directed by Penal Law § 60.27(8). The record includes an affidavit dated February 10, 2015, of the supervisor of the Orange County Probation Department demonstrating that the actual cost of collection and administration will exceed 5% (see Penal Law § 60.27[8] ; cf. People v. Martinez, 144 A.D.3d 708, 39 N.Y.S.3d 810 ; People v. Perez, 130 A.D.3d 1496, 1497, 14 N.Y.S.3d 246 ; People v. Stachnik, 101 A.D.3d 1590, 1592, 956 N.Y.S.2d 777 ). In response, the defendant failed to file an application with the court contending that the imposition of the additional surcharge would cause undue hardship or otherwise not be in the interest of justice (see Penal Law § 60.27[8] ). The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.