Opinion
107935
03-08-2018
The PEOPLE of the State of New York, Respondent, v. Michael SCHROM, Appellant.
Adam G. Parisi, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Pritzker, JJ.
MEMORANDUM AND ORDER
McCarthy, J.Appeal from a judgment of the County Court of Schenectady County (Loyola, J.), rendered March 11, 2015, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the third degree.
Defendant pleaded guilty to criminal possession of stolen property in the third degree and waived his right to appeal. He was sentenced as a second felony offender to a prison term of 3½ to 7 years and ordered to pay restitution in the amount of $1,675 plus a surcharge. Defendant appeals.
Initially, the People concede, and our review of the record confirms, that the waiver of the right to appeal was invalid inasmuch as County Court did not explain the separate and distinct nature of the waiver or ascertain that defendant fully understood its consequences (see People v. Loika, 153 A.D.3d 1516, 1517, 61 N.Y.S.3d 711 [2017] ; People v. Woods, 150 A.D.3d 1560, 1562, 55 N.Y.S.3d 780 [2017], lv denied 29 N.Y.3d 1095, 63 N.Y.S.3d 12, 85 N.E.3d 107 [2017] ). As such, defendant's challenge to the amount of restitution imposed is not precluded by the appeal waiver. Nevertheless, the issue is unpreserved for our review because defendant, who was well aware of the amount of restitution to be ordered given that it was part of the plea agreement, failed to request a restitution hearing or otherwise contest the amount at sentencing (see People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ; People v. Johnson, 151 A.D.3d 1462, 1466, 58 N.Y.S.3d 213 [2017], lv denied 30 N.Y.3d 1106, ––– N.Y.S.3d ––––, –––N.E.3d –––– [Jan. 26, 2018] ; People v. Musella, 148 A.D.3d 1465, 1467, 50 N.Y.S.3d 612 [2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur.