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The People of the State of New York v. Frank C. Leone Jr

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


December 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
FRANK C. LEONE JR., APPELLANT.

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered June 15, 2010, convicting defendant upon his plea of guilty of the crimes of grand larceny in the fourth degree and forgery in the second degree.

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

MEMORANDUM AND ORDER

Calendar Date: November 19, 2012

Before: Peters, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

Defendant waived indictment, as well as his right to appeal, and pleaded guilty to a superior court information charging him with grand larceny in the fourth degree and forgery in the second degree. Defendant thereafter was sentenced as a second felony offender to the recommended prison term of 2 to 4 years for each crime -- said sentences to be served consecutively -- and ordered to pay, among other things, restitution and the statutory surcharge. This appeal ensued.

We affirm. Defendant's challenge to the factual sufficiency of his plea is precluded by his valid waiver of the right to appeal and, further, is unpreserved for our review absent evidence on this record that defendant moved to withdraw his plea or vacate the judgment of conviction (see People v Flake, 95 AD3d 1371, 1372 [2012], lvs denied 19 NY3d 973, 974 [2012]; People v Planty, 85 AD3d 1317, 1317-1318 [2011], lv denied 17 NY3d 820 [2011]). Although defendant's assertion that his plea was involuntary survives his waiver of appeal, this claim also is unpreserved for our review in the absence of an appropriate postallocution motion (see People v Wicks, 83 AD3d 1223, 1224 [2011], lv denied 17 NY3d 810 [2011]; People v Thomas, 81 AD3d 997, 998 [2011], lv denied 16 NY3d 900 [2011]). The narrow exception to the preservation rule has not been triggered here, as defendant did not make any statements during the course of the plea allocution that negated an essential element of the crimes charged or otherwise called into question his guilt (see People v White, 96 AD3d 1299, 1300 [2012], lv denied 19 NY3d 1029 [2012]; People v Klages, 90 AD3d 1149, 1150 [2011], lv denied 18 NY3d 925 [2012]).

As for the issue of restitution, contrary to defendant's present claim, "the record before us makes clear that restitution indeed was part of the underlying plea agreement" (People v Smith, 100 AD3d 1102, ___, 953 NYS2d 377, 378 [2012]). Further, although defendant's challenge to the amount of restitution actually ordered survives his otherwise valid waiver of the right to appeal because the plea agreement was silent on this point, his current challenge to the sum imposed -- as well as his claim that such amount lacks sufficient support in the record -- is unpreserved for our review in light of his failure to request a hearing or otherwise contest the sum imposed at the time of sentencing (see People v Smith, 953 NYS2d at 378; People v Vasavada, 93 AD3d 893, 894 [2012], lv denied 19 NY3d 978 [2012]). Finally, "we do not require that a defendant be advised, prior to his or her plea, that the statutory surcharge is a part of the sentence" (People v Salmans, 49 AD3d 961, 962 [2008]). Accordingly, defendant's argument on this point must fail.

Peters, P.J., Spain, Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER: Robert D. Mayberger Clerk of the Court

20121220

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