Opinion
10-05-2017
The PEOPLE of the State of New York, Respondent, v. Edward WRIGHT, Appellant.
Susan Patnode, Rural Law Center of New York, Castleton (Sandra M. Colatosti of Counsel), for appellant. Jason M. Carusone, Acting District Attorney, Lake George (Emilee B. Davenport of Counsel), for respondent.
Susan Patnode, Rural Law Center of New York, Castleton (Sandra M. Colatosti of Counsel), for appellant.
Jason M. Carusone, Acting District Attorney, Lake George (Emilee B. Davenport of Counsel), for respondent.
Before: EGAN JR., J.P., LYNCH, ROSE and MULVEY, JJ.
ROSE, J.Defendant pleaded guilty to the crime of burglary in the first degree in full satisfaction of a nine-count indictment and waived the right to appeal. County Court thereafter sentenced defendant, as a second felony offender, to the agreed-upon sentence of 17 ½ years in prison, to be followed by five years of postrelease supervision and ordered him to pay restitution in the amount of $625.45, plus a 10% surcharge. Defendant now appeals.We affirm. Initially, we reject defendant's contention that his waiver of the right to appeal was invalid. County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea, and defendant affirmed his understanding of the ramifications of the waiver. Defendant thereafter executed a written waiver in open court after discussing the waiver with counsel. Accordingly, we find that defendant knowingly, intelligently and voluntarily waived the right to appeal (see People v. Caldwell, 148 A.D.3d 1468, 1468, 49 N.Y.S.3d 312 [2017] ; People v. Dolberry, 147 A.D.3d 1149, 1150, 46 N.Y.S.3d 437 [2017], lv. denied 29 N.Y.3d 1078, ––– N.Y.S.3d ––––, ––– N.E.3d ––––– [2017] ). Defendant's valid appeal waiver precludes his claim that the sentence is harsh and excessive (see People v. Bartlett, 148 A.D.3d 1471, 1472, 50 N.Y.S.3d 616 [2017] ; People v. Golgoski, 145 A.D.3d 1195, 1196, 42 N.Y.S.3d 481 [2016], lv. denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ).
Defendant further contends that he did not voluntarily enter into the agreement because County Court did not advise him, prior to his plea, about a potential intoxication defense. While a challenge to the voluntariness of a plea must generally be preserved by an appropriate postallocution motion, preservation was not required here because "there [was] no practical opportunity to do so prior to sentencing" ( People v. Rebelo, 137 A.D.3d 1315, 1317, 27 N.Y.S.3d 699 [2016], lv. denied 28 N.Y.3d 936, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016], cert. denied – –– U.S. ––––, 137 S.Ct. 385, 196 L.Ed.2d 304 [2016] ; see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Sougou, 26 N.Y.3d 1052, 1054, 23 N.Y.S.3d 121, 44 N.E.3d 196 [2015] ). The record reflects, however, that defendant made no statements during the plea allocution that would have obligated County Court to inquire into a potential intoxication defense prior to accepting his plea (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Maxson, 101 A.D.3d 1384, 1385–1386, 956 N.Y.S.2d 301 [2012] ). Although the pre-plea investigation report indicates that defendant stated to police investigators that he was under the influence of crack cocaine on the day of the crime, his responses during the plea colloquy established that he knowingly entered the victim's home with the intent to commit a crime and, while in the dwelling, he caused physical injuries to the victim (see Penal Law § 140.30[2] ). Accordingly, County Court properly accepted defendant's plea (see People v. Jones, 73 A.D.3d 1386, 1387, 900 N.Y.S.2d 797 [2010] ; People v. Wagoner, 30 A.D.3d 629, 629–630, 815 N.Y.S.2d 784 [2006] ). Finally, although defendant's challenge to the amount of restitution is not precluded by the valid appeal waiver (see People v. Ortiz, 148 A.D.3d 1291, 1292, 48 N.Y.S.3d 834 [2017], it is nevertheless unpreserved for our review in light of his failure to request a hearing or object to the amount at sentencing see People v. Shannon, 139 A.D.3d 1250, 1250–1251, 30 N.Y.S.3d 581 [2016], lv. denied 28 N.Y.3d 974, 43 N.Y.S.3d 261, 66 N.E.3d 7 [2016] ; People v. Williams, 123 A.D.3d 1374, 1375, 997 N.Y.S.2d 542 [2014], lv. denied 25 N.Y.3d 954, 7 N.Y.S.3d 284, 30 N.E.3d 175 [2015] ).ORDERED that the judgment is affirmed.
EGAN JR., J.P., LYNCH and MULVEY, JJ., concur.