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People v. Ortiz

Supreme Court of New York, Third Department

March 9, 2017

EDWIN E. ORTIZ, Appellant.

          Calendar Date: January 9, 2017

          M. Elizabeth Coreno, Saratoga Springs, for appellant.

          Kelli P. McCoski, District Attorney, Fonda, for respondent.

          Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.


          CLARK, J.

         Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered July 22, 2014, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

         Defendant waived indictment and pleaded guilty to assault in the second degree as charged in a superior court information, and also waived his right to appeal. County Court thereafter imposed the agreed-upon prison sentence of three years, followed by three years of postrelease supervision, and ordered defendant to pay one of the victims restitution in the amount of $94, 307.32. Defendant now appeals, and we affirm.

         Initially, we are unpersuaded by defendant's assertion that his waiver of his right to appeal was not knowing, intelligent and voluntary. County Court explained, and defendant communicated his understanding, that, in addition to the trial-related rights that he was forfeiting by pleading guilty, he was required to waive his right to appeal under the "particular plea agreement" that he was entering into. Defendant also signed a written waiver of appeal in open court, after having been afforded an opportunity to consult with counsel as to the terms of that written waiver, which expressly stated that defendant understood that, by waiving his right to appeal, he was "giving up rights beyond those that [he gave] up by entering a guilty plea." Accordingly, we find that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Velazquez, 125 A.D.3d 1063, 1063 [2015], lv denied 25 N.Y.3d 993');">25 N.Y.3d 993 [2015]; People v Terrell, 123 A.D.3d 1341, 1341 [2014], lv denied 25 N.Y.3d 953');">25 N.Y.3d 953 [2015]; People v Baliraj, 101 A.D.3d 1175, 1176 [2012], lv denied 21 N.Y.3d 941');">21 N.Y.3d 941 [2013]). Consequently, the valid appeal waiver precludes defendant's challenge to the sentence as harsh and excessive (see People v Belile, 137 A.D.3d 1460, 1461 [2016]; People v Neiles, 128 A.D.3d 1179, 1180 [2015]; People v Banks, 122 A.D.3d 953, 954 [2014], lv denied 26 N.Y.3d 925 [2015]).

         Defendant further challenges the amount of restitution awarded to one of the victims, an issue that defendant preserved by participating in the restitution hearing and contesting the amount imposed at the time of sentencing (see People v Ford, 77 A.D.3d 1176, 1176 [2010], lv denied 17 N.Y.3d 816 [2011]; compare People v Hakkenberg, 142 A.D.3d 1251, 1252 [2016], lv denied 28 N.Y.3d 1072');">28 N.Y.3d 1072 [2016]; People v Miller, 137 A.D.3d 1485, 1486 [2016]), and that is not precluded by the valid appeal waiver since the underlying plea agreement did not specify the amount of restitution to be awarded (see People v Brasmeister, 136 A.D.3d 1122, 1123 [2016], lv denied 27 N.Y.3d 993');">27 N.Y.3d 993 [2016]; People v Gardner, 129 A.D.3d 1386, 1388 [2015]; People v Smith, 100 A.D.3d 1102, 1102 [2012]). "In seeking restitution, the People bore the burden of demonstrating the amount of the victim's out-of-pocket losses by a preponderance of the evidence. The amount gained by defendant or taken from the victim must be offset against the value of any benefit that may have been conferred upon the victim, and the People must show both components of the restitution equation, the amount taken minus the benefit conferred" (People v Decker, 139 A.D.3d 1113, 1117-1118 [2016] [internal quotation marks and citations omitted], lv denied 28 N.Y.3d 928 [2016]; accord People v Johnson, 91 A.D.3d 1121, 1123 [2012], lv denied 18 N.Y.3d 959');">18 N.Y.3d 959 [2012]; see Penal Law § 60.27 [2]; CPL 400.30 [4]; People v Tzitzikalakis, 8 N.Y.3d 217, 221-222 [2007]).

         In our view, the evidence presented at the hearing - which included the bills that the victim received for the medical services rendered to him as a result of his injuries inflicted by defendant - was sufficient to satisfy the People's burden of proving the victim's out-of-pocket losses (see Penal Law § 60.27 [2], [5] [b]; People v Sherman, 91 A.D.3d 982, 983 [2012], lv denied 19 N.Y.3d 867');">19 N.Y.3d 867 [2012]; People v Thomas, 71 A.D.3d 1231, 1232 [2010], lv denied 14 N.Y.3d 893');">14 N.Y.3d 893 [2010]; People v Drew, 16 A.D.3d 840, 841 [2005]; People v Canada, 156 A.D.2d 1001, 1002 [1989], lv denied 75 N.Y.2d 964');">75 N.Y.2d 964 [1990]). Accordingly, County Court properly fixed the amount of restitution, and, as defendant has failed to contradict the People's calculation by merely pointing to the language contained in one of the medical bills indicating an offer to settle absent payment of the demanded sum, we decline to disturb the award (see People v Decker, 139 A.D.3d at 1118).

          McCarthy, J.P., Egan Jr., Lynch and ...

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