PEOPLE v. BRIGGS (2019)

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 robbery in the third degree (Penal Law § 160.05). As the People correctly concede, defendant did not validly waive his right to appeal because, although he signed a written appeal waiver form, County Court did not conduct an oral colloquy to ensure the voluntariness of that waiver (see People v. Myers, 145 A.D.3d 1596, 1596–1597, 45 N.Y.S.3d 745 [4th Dept. 2016], affd 32 N.Y.3d 18, 84 N.Y.S.3d 406, 109 N.E.3d 555 [2018] ).  Defendant's challenges to the restitution order are unpreserved for appellate review, however, and we decline to address them as a matter of discretion in the interest of justice (see People v. Patrick, 125 A.D.3d 1053, 1054, 999 N.Y.S.2d 774 [3d Dept 2015], lv denied 25 N.Y.3d 991, 10 N.Y.S.3d 534, 32 N.E.3d 971 [2015];  People v. Jones, 108 A.D.3d 1206, 1207, 969 N.Y.S.2d 364 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171 [2013];  see generally People v. Horne, 97 N.Y.2d 404, 414 n 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ).  Contrary to defendant's contention, his particular challenges to the restitution order do not implicate the legality of his sentence (see People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ).  Moreover, in the absence of a request for a restitution hearing, the court's failure to conduct such a hearing does not constitute a mode of proceedings error (see Horne, 97 N.Y.2d at 414 n 3, 740 N.Y.S.2d 675, 767 N.E.2d 132;  Callahan, 80 N.Y.2d at 281, 590 N.Y.S.2d 46, 604 N.E.2d 108;  cf. People v. Consalvo, 89 N.Y.2d 140, 146, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996] ).  Finally, defendant's contention that defense counsel was ineffective in failing to challenge the restitution order “cannot be resolved without reference to matter outside the record” and must therefore be raised pursuant to CPL article 440 (People v. Posner, 100 A.D.3d 805, 808, 954 N.Y.S.2d 118 [2d Dept. 2012] ).