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The People of the State of v. Albert L. Sherman Jr

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


January 5, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ALBERT L. SHERMAN JR., APPELLANT.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered March 22, 2010, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

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

Calendar Date: November 16, 2011

Before: Peters, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

Defendant was charged in a superior court information, waived indictment and pleaded guilty to assault in the second degree. Pursuant to the plea agreement, defendant waived his right to appeal and agreed to pay restitution for the out-of-pocket medical expenses incurred by the victim. Further, it was understood that defendant would be released pending sentencing and, if he cooperated with the terms of his release, he would be allowed to withdraw his plea and enter a guilty plea to attempted assault in the second degree. While on release, defendant was arrested after he allegedly attempted to rob someone at gunpoint. County Court thereafter found that defendant had violated the terms of his release and sentenced him, as a second felony offender, to five years in prison to be followed by five years of postrelease supervision. Defendant was also ordered to pay restitution in the amount of $10,000. Defendant now appeals.

We affirm. Initially, we find that defendant validly waived his right to appeal. Contrary to defendant's contention, the waiver was not rendered invalid by County Court's failure to recite during allocution, as set forth in the written waiver of appeal executed by defendant in open court, that it would not accept his plea unless defendant waived his right to appeal. The record demonstrates that defendant was informed prior to entering his plea that he would be required to waive his right to appeal as part of the plea. Further, County Court explained the ramifications of the waiver during allocution, which defendant stated that he understood, and defendant then executed the written waiver. Under these circumstances, we find a knowing, intelligent and voluntary waiver of the right to appeal (see People v Planty, 85 AD3d 1317, 1317 [2011], lv denied 17 NY3d 820 [2011]; People v White, 84 AD3d 1641, 1641 [2011]).

Defendant's contention that his plea was not knowingly, intelligently and voluntarily entered, which survives his appeal waiver, is not preserved for our review in light of his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Robinson, 86 AD3d 719, 720 [2011]; People v Hill, 81 AD3d 1040, 1040 [2011]). Moreover, the narrow exception to the preservation rule is inapplicable here insofar as defendant did not make any statements during allocution that negated a material element of the crime or otherwise cast doubt upon his guilt (see People v Gantt, 84 AD3d 1642, 1643 [2011]; People v Campbell, 81 AD3d 1184, 1185 [2011]).

Regarding restitution, inasmuch as the amount to be awarded was not specified in the plea agreement, defendant's challenge to the restitution order is not precluded by his appeal waiver (see People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]). However, while at sentencing defendant questioned certain items in the victim's itemized medical bill, which was included with the presentence investigation report and totaled $16,337.84, defendant did not request a restitution hearing or challenge the $10,000 ultimately awarded by County Court. Accordingly, his claim that the amount awarded is not supported by the record is not preserved for our review (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Empey, 73 AD3d 1387, 1389 [2010], lv denied 15 NY3d 804 [2010]). In any event, the victim's medical bill supported the amount of restitution ordered (see People v Kim, 91 NY2d 407, 411 [1998]; People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14 NY3d 893 [2010]).

Defendant's claim that his sentence is harsh and excessive is precluded by his waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Jones, 83 AD3d 1289, 1290 [2011], lv denied 17 NY3d 860 [2011]). Finally, defendant's remaining claims, including that County Court abused its discretion in denying his request for an adjournment at sentencing, have been examined and found to be without merit.

Peters, J.P., Rose, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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