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People v. Mahon

Supreme Court of New York, Third Department

March 9, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
ROBERT E. MAHON JR., Appellant.

          Calendar Date: January 11, 2017

          Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

          Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

          Before: McCarthy, J.P., Garry, Lynch, Rose and Aarons, JJ.

          MEMORANDUM AND ORDER

          AARONS, J.

         Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered April 2, 2015, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

         Defendant entered an Alford plea to burglary in the third degree in satisfaction of a superior court information, waived his right to appeal and was placed on interim probation for one year. According to the plea agreement, if defendant was successful on interim probation, he would be sentenced to five years of probation and ordered to pay restitution. Defendant subsequently admitted to violating the interim probation. County Court sentenced defendant to a prison term of 2 to 6 years and ordered restitution in the amount of $360. Defendant appeals.

         As an initial matter, we find that defendant's waiver of appeal was valid. The record reflects that County Court informed defendant of the separate and distinct nature of the waiver of the right to appeal. Defendant executed a written waiver of appeal, which explained that he had the right to "appeal to a higher court" and that he was relinquishing that right. In view of the foregoing, we conclude that defendant's combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v Bryant, 28 N.Y.3d 1094, 1096 [2016]; People v Toledo, 144 A.D.3d 1332, 1332 [2016]; People v Oddy, 144 A.D.3d 1322, 1323 [2016]; People v Lester, 141 A.D.3d 951, 952-953 [2016]).

         To that end, defendant's valid waiver of appeal precludes his claim of ineffective assistance of counsel, except insofar as the alleged ineffective assistance impacts the voluntariness of the plea (see People v Lloyd, 142 A.D.3d 1250, 1250 [2016], lv denied 28 N.Y.3d 1073');">28 N.Y.3d 1073 [2016]; People v Viele, 130 A.D.3d 1097, 1097 [2015]). Such claims as to the voluntariness of the plea, however, are unpreserved in the absence of a postallocution motion [1] and the narrow exception to the preservation requirement is inapplicable (see People v Ortiz, 127 A.D.3d 1416, 1417 [2015], lv denied 26 N.Y.3d 1010');">26 N.Y.3d 1010 [2015]). Defendant's challenges to the sufficiency of the plea and the severity of his sentence are also foreclosed by his valid appeal waiver (see People v Lopez, 6 N.Y.3d 248, 255-256 [2009]; People v Woods, 141 A.D.3d 954, 955 [2016], lv denied 28 N.Y.3d 1076');">28 N.Y.3d 1076 [2016]; People v Goldman, 139 A.D.3d 1111, 1111-1112 [2016], lv denied 28 N.Y.3d 970');">28 N.Y.3d 970 [2016]; People v Long, 117 A.D.3d 1326, 1327 [2014], lv denied 24 N.Y.3d 1003');">24 N.Y.3d 1003 [2014]).

         Although defendant's contention regarding the amount of restitution imposed is not precluded by the appeal waiver "because the plea agreement did not specify the amount of restitution to be awarded" (People v Ortolaza, 120 A.D.3d 843, 844 [2014], lv denied 25 N.Y.3d 991');">25 N.Y.3d 991 [2015]), the issue is nonetheless unpreserved for our review given defendant's failure to request a hearing or object to the amount of restitution imposed at sentencing (see People v Horne, 97 N.Y.2d 404, 414 n 3 [2002]; 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 Disotell, 123 A.D.3d 1230, 1231 [2014], lv denied 25 N.Y.3d 1162');">25 N.Y.3d 1162 [2015]).

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

         ORDERED that the judgment is affirmed.

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