Opinion
07-21-2016
The PEOPLE of the State of New York, Respondent, v. Emmett WOODS, Appellant.
Sandra M. Colatosti, Albany, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, EGAN JR., DEVINE and AARONS, JJ.
Opinion
AARONS, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered August 25, 2014, convicting defendant upon his plea of guilty of the crimes of scheme to defraud in the first degree, identity theft in the second degree and criminal possession of a forged instrument in the second degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty to scheme to defraud in the first degree, identity theft in the second degree and criminal possession of a forged instrument in the second degree as charged in separate superior court informations. Defendant also orally waived his right to appeal and executed a written waiver of appeal in open court. County Court sentenced defendant, as a second felony offender, to an aggregate prison term of 7 ½ to 15 years in accordance with the plea agreement and also directed him to pay restitution, jointly and severally with his codefendant, in the amount of $23,900, plus a five percent surcharge. Defendant appeals.
Initially, we disagree with defendant that his waiver of appeal was invalid. In the written waiver, defendant acknowledged that he discussed with his counsel the legal ramifications of waiving his right to appeal, that he ordinarily retained the right to appeal and that, as part of his negotiated plea, he was waiving that right. Moreover, County Court provided defendant with time to read, sign and discuss the waiver with counsel, confirmed that defendant understood the waiver and explained that his waiver of appeal was separate and distinct from those rights forfeited upon his guilty plea. Accordingly, we conclude that defendant's waiver of appeal was knowing, voluntary and intelligent (see People v. Therrien, 134 A.D.3d 1231, 1232, 20 N.Y.S.3d 743 [2015] ; People v. Fligger, 117 A.D.3d 1343, 1344, 986 N.Y.S.2d 689 [2014], lv. denied 23 N.Y.3d 1061, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ; People v. Rosseter, 62 A.D.3d 1093, 1094, 878 N.Y.S.2d 512 [2009] ). Defendant's argument that the sentence was harsh and excessive is therefore precluded by his valid waiver of appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2015] ; People v. Brasmeister, 136 A.D.3d 1122, 1123, 25 N.Y.S.3d 694 [2016], lv. denied 27 N.Y.3d 993, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ).
Although the appeal waiver does not preclude defendant's assertion that County Court should have conducted a restitution hearing (see People v. Thomas, 71 A.D.3d 1231, 1232, 896 N.Y.S.2d 264 [2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ; compare People v. Taylor, 70 A.D.3d 1121, 1122, 894 N.Y.S.2d 572 [2010], lv. denied 14 N.Y.3d 845, 901 N.Y.S.2d 151, 927 N.E.2d 572 [2010] ), he neither requested a hearing nor objected to the amount of restitution imposed at the time of sentencing. In addition, while the amount was not specified, defendant's plea agreement contemplated restitution, and defense counsel expressly stated, at sentencing, that he had reviewed the amount of restitution proposed by the People and had no objection to it. Under these circumstances, defendant's contention is unpreserved for our review, and we discern no reason to take corrective action in the interest of justice (see People v. Sparbanie, 110 A.D.3d 1119, 1120, 972 N.Y.S.2d 364 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ; People v. Rossborough, 100 A.D.3d 1149, 1149, 953 N.Y.S.2d 904 [2012] ).
Finally, we disagree with defendant's contention that County Court imposed an illegal sentence by directing that the sentences for scheme to defraud in the first degree and identity theft in the second degree run consecutively. Under the circumstances of this case, the allegations set forth in the superior court informations, combined with the facts adduced during the plea allocution, sufficiently establish that these crimes “are distinct and [that] the charges arose from separate acts” (People v. Hayes, 71 A.D.3d 1187, 1189, 896 N.Y.S.2d 225 [2010], lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ). Accordingly, we conclude that the imposition of consecutive sentences was not illegal (see People v. Dean, 8 N.Y.3d 929, 931, 834 N.Y.S.2d 704, 866 N.E.2d 1032 [2007] ; People v. Howland, 130 A.D.3d 1105, 1105, 13 N.Y.S.3d 613 [2015], lv. denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ).
Defendant's waiver of his right to appeal does not preclude his challenge to the legality of his sentence (see
ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY, EGAN JR. and DEVINE, JJ., concur.
People v. Howland, 130 A.D.3d 1105, 1105, 13 N.Y.S.3d 613 [2015], lv. denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ).