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People v. Durham

Supreme Court of New York, Third Department

October 17, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
KENNETH C. DURHAM, Appellant.

Calendar Date: September 4, 2013

Rebecca L. Fox, Plattsburgh, for appellant.

Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), for respondent.

Before: Peters, P.J., Rose, Lahtinen and Garry, JJ.

MEMORANDUM AND ORDER

Peters, P.J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered May 19, 2011, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.

Defendant was charged in an indictment with various crimes after an infant under his care sustained serious injuries, including brain damage. In satisfaction thereof, he pleaded guilty to attempted assault in the first degree and waived his right to appeal both orally and in writing. In accordance with the terms of the plea agreement, defendant was sentenced as a second felony offender to 15 years in prison, to be followed by five years of postrelease supervision. In addition, he was ordered to pay restitution. Defendant now appeals.

Initially, defendant's challenge to the factual sufficiency of his guilty plea is precluded by his valid waiver of the right to appeal and is also unpreserved for our review inasmuch as the record does not indicate that he moved to withdraw his plea or vacate the judgment of conviction (see People v Frank, 100 A.D.3d 1145, 1146 [2012]; People v Harris, 51 A.D.3d 1335, 1336 [2008], lv denied 11 N.Y.3d 789 [2008]). Contrary to defendant's claim, the transcript of the plea proceeding does not reveal that he made statements negating essential elements of the crime or that otherwise cast doubt upon his guilt such as to compel County Court to conduct a further inquiry (see People v Van Bramer, 26 A.D.3d 672, 673 [2006], lv denied 7 N.Y.3d 764 [2006]). Defendant's challenge to the severity of the sentence is likewise foreclosed by his valid appeal waiver (see People v Walker, 47 A.D.3d 965, 966 [2008]; People v Nesbitt, 23 A.D.3d 836, 837 [2005], lv denied 6 N.Y.3d 816 [2006]).

Insofar as the record discloses that County Court initially ordered defendant to pay restitution yet failed to set forth the time and manner of such payment, we modify the judgment by vacating the restitution order and remitting for such purpose (see People v Dickson, 260 A.D.2d 931, 934 [1999], lv denied 93 N.Y.2d 1017 [1999]; People v Dixon, 156 A.D.2d 976, 976 [1989]).

Rose, Lahtinen and Garry, JJ., concur.

ORDERED that the judgment is modified, on the law, by reversing so much thereof as failed to set forth the time and manner by which restitution is to be made; matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.


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