PEOPLE v. DEHOYOS (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).  Contrary to defendant's contention, we conclude that the record establishes that his waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ).  Moreover, “[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable” (People v. Weatherbee, 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] [internal quotation marks omitted];  see People v. Mead, 133 A.D.3d 1257, 1258, 20 N.Y.S.3d 776 [4th Dept. 2015] ).  Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of his sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  Even assuming, arguendo, that defendant's appeal waiver does not encompass his contention that the component of his sentence requiring him to pay restitution must be vacated because County Court did not require an affidavit pursuant to Penal Law § 60.27(9), we conclude that defendant's contention is not preserved for our review (see People v. Connors, 91 A.D.3d 1340, 1341–1342, 937 N.Y.S.2d 492 [4th Dept. 2012], lv denied 18 N.Y.3d 956, 944 N.Y.S.2d 485, 967 N.E.2d 710 [2012] ).  We decline to exercise our power to reach that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).

Defendant's further contention that the restitution component of his sentence must be vacated because restitution was directed to an entity that is not a law enforcement agency as contemplated in Penal Law § 60.27(9) is a challenge to the legality of the sentence and thus survives his waiver of the right to appeal and does not require preservation (see People v. Boatman, 110 A.D.3d 1463, 1464, 972 N.Y.S.2d 780 [4th Dept. 2013], lv denied 22 N.Y.3d 1039, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ).  Contrary to defendant's contention, we conclude that the court properly directed him to pay restitution to the Orleans County Major Felony Crime Task Force for the unrecovered funds it expended in buying drugs from him (see § 60.27 [9];  People v. Tracey, 221 A.D.2d 738, 738, 633 N.Y.S.2d 645 [3d Dept. 1995], lv denied 88 N.Y.2d 943, 647 N.Y.S.2d 177, 670 N.E.2d 461 [1996];  see generally People v. Diallo, 88 A.D.3d 1152, 1153–1154, 931 N.Y.S.2d 444 [3d Dept. 2011], lv denied 18 N.Y.3d 993, 945 N.Y.S.2d 648, 968 N.E.2d 1004 [2012];  People v. McCorkle, 298 A.D.2d 848, 848, 747 N.Y.S.2d 819 [4th Dept. 2002], lv. denied 99 N.Y.2d 561, 754 N.Y.S.2d 213, 784 N.E.2d 86 [2002] ).

Finally, we note that the certificate of conviction should be amended because it incorrectly reflects that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Holmes, 147 A.D.3d 1367, 1367–1368, 45 N.Y.S.3d 751 [4th Dept. 2017], lv. denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017];  People v. Smallwood, 145 A.D.3d 1447, 1447, 44 N.Y.S.3d 623 [4th Dept. 2016] ).