Calendar Date: January 11, 2017
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
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
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.
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 ;
People v Toledo, 144 A.D.3d 1332, 1332 ;
People v Oddy, 144 A.D.3d 1322, 1323 ;
People v Lester, 141 A.D.3d 951, 952-953 ).
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 , lv denied 28 N.Y.3d 1073');">28 N.Y.3d 1073 ;
People v Viele, 130 A.D.3d 1097, 1097 ). Such
claims as to the voluntariness of the plea, however, are
unpreserved in the absence of a postallocution motion
and the narrow exception to the preservation requirement is
inapplicable (see People v Ortiz, 127 A.D.3d 1416,
1417 , lv denied 26 N.Y.3d 1010');">26 N.Y.3d 1010 ).
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 ; People v Woods, 141 A.D.3d 954, 955
, lv denied 28 N.Y.3d 1076');">28 N.Y.3d 1076 ; People
v Goldman, 139 A.D.3d 1111, 1111-1112 , lv
denied 28 N.Y.3d 970');">28 N.Y.3d 970 ; People v Long, 117
A.D.3d 1326, 1327 , lv denied 24 N.Y.3d 1003');">24 N.Y.3d 1003
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 , lv denied
25 N.Y.3d 991');">25 N.Y.3d 991 ), 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 ; People v Hakkenberg, 142 A.D.3d 1251, 1252
, lv denied 28 N.Y.3d 1072');">28 N.Y.3d 1072 ; People
v Disotell, 123 A.D.3d 1230, 1231 , lv
denied 25 N.Y.3d 1162');">25 N.Y.3d 1162 ).
McCarthy, J.P., Garry, Lynch and Rose, JJ., concur.
that the judgment is affirmed.