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People v. Pump

State of New York Supreme Court, Appellate Division Third Judicial Department

November 5, 2009


The opinion of the court was delivered by: Kane, J.


Calendar Date: September 15, 2009

Before: Peters, J.P., Spain, Rose, Kane and Stein, JJ.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered January 22, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

After defendant shot his girlfriend, he was charged by indictment with attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree. Although defendant repeatedly expressed his dissatisfaction with assigned counsel, County Court found no reason to relieve counsel. With counsel's advice, defendant pleaded guilty to criminal possession of a weapon in the second degree in satisfaction of not only the indictment, but two unrelated pending charges as well. As part of the plea bargain, defendant waived his right to appeal and agreed to pay restitution. The court sentenced defendant to the agreed-upon term of eight years in prison, followed by three years of postrelease supervision, and ordered him to pay $19,884.85 as restitution. On defendant's appeal, we affirm.

Defendant validly waived his right to appeal. The record substantiates -- through County Court's admonitions and the written waiver of appeal -- the knowing, intelligent and voluntary character of defendant's waiver (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Leonard, 63 AD3d 1278, 1279 [2009]; People v Tabbott, 61 AD3d 1183, 1184 [2009]). Based on the valid waiver, defendant has given up his right to raise most issues on appeal (see People v Hansen, 95 NY2d 227, 230 [2000]; see also People v Muniz, 91 NY2d 570, 574 [1998]), including any challenge to County Court's suppression ruling (see People v Martin, 16 AD3d 767, 767-768 [2005]) and denial of his request for substitution of counsel (see People v Williams, 6 AD3d 746, 747 [2004], lv denied 3 NY3d 650 [2004]). These issues did not affect the voluntariness of his plea, and during the plea colloquy defendant informed the court that he was satisfied with counsel's services (see id.). As relevant here, the only issues that survive the valid waiver of appeal are those that implicate the knowing or voluntary nature of the plea itself and defendant's argument concerning restitution (see People v Francabandera, 33 NY2d 429, 434 n 2 [1974]).

Defendant knowingly, intelligently and voluntarily entered his plea. Although this issue survives a waiver of the right to appeal, defendant failed to preserve the issue by moving to withdraw his plea or vacate the judgment on this ground, and the narrow exception to the preservation rule is inapplicable here (see People v Dixon, 62 AD3d 1214, 1214 [2009]). In any event, under all of the circumstances, including County Court's colloquy with defendant informing him of the various rights he was giving up by pleading guilty, the plea was fully informed and voluntary (see People v Newcomb, 45 AD3d 890, 892 [2007]).

Defendant also contends that County Court erred in denying his request to proceed pro se. This argument is foreclosed by his valid waiver of appeal, except to the extent that it affected the voluntary nature of his plea (see People v Shields, 205 AD2d 833, 834 [1994]). As a review of the record does not establish that the court's denial of defendant's motion to proceed pro se rendered his plea involuntary, such a contention must rely upon information outside the record. Defendant failed to preserve this argument by providing such information through a motion to withdraw his plea or vacate his judgment of conviction (cf. People v Dixon, 62 AD3d at 1214; People v Jacob, 129 AD2d 650, 651 [1987], lv denied 70 NY2d 800 [1987]).

County Court did not err in fixing the amount of restitution. Defendant's waiver of the right to appeal does not foreclose his argument that the restitution portion of the sentence was illegal (see People v Casiano, 8 AD3d 761, 762 [2004]). While Penal Law § 60.27 (5) (a) limits restitution to no more than $15,000, Penal Law § 60.27 (5) (b) permits restitution to exceed $15,000 so long as the amount in excess is limited to certain categories of expenses, including reimbursement for medical expenses actually incurred by the victim. As the majority of the $19,884.85 ordered here constituted reimbursement for the victim's medical expenses, the court-imposed restitution is in accordance with the law.

Peters, J.P., Spain, Rose and Stein, JJ., concur.

ORDERED that the judgment is affirmed.


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