PEOPLE v. RICHARDSON (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating that part of the sentence awarding restitution and as modified the judgment is affirmed.

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of, inter alia, robbery in the first degree (Penal Law § 160.15[3]), defendant contends that he was deprived of his state constitutional right to counsel in connection with his decision to testify before the grand jury.  Although defendant's deprivation of counsel contention is not forfeited by his guilty plea (see People v. Griffin, 20 N.Y.3d 626, 630–632, 964 N.Y.S.2d 505, 987 N.E.2d 282 [2013];  People v. Smith, 143 A.D.3d 31, 34, 37 N.Y.S.3d 4 [1st Dept. 2016], mod on other grounds 30 N.Y.3d 626, 69 N.Y.S.3d 566, 92 N.E.3d 789 [2017];  People v. Chappelle, 121 A.D.3d 1166, 1168, 994 N.Y.S.2d 435 [3d Dept. 2014], lv denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015]), it is nevertheless encompassed by his general, unrestricted, and unchallenged waiver of his right to appeal (see People v. Vanvleet, 126 A.D.3d 1359, 1360, 4 N.Y.S.3d 797 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015];  see also People v. Triplett, 149 A.D.3d 1592, 1592–1593, 51 N.Y.S.3d 469 [4th Dept. 2017], lv denied 29 N.Y.3d 1095, 63 N.Y.S.3d 11, 85 N.E.3d 106 [2017];  People v. Whitfield, 52 A.D.3d 748, 748, 858 N.Y.S.2d 903 [2d Dept. 2008], lv denied 11 N.Y.3d 858, 872 N.Y.S.2d 81, 900 N.E.2d 564 [2008];  People v. Segrue, 274 A.D.2d 671, 672, 710 N.Y.S.2d 466 [3d Dept. 2000], lv denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154 [2000]).  Notably, unlike in People v. Robbins, 33 A.D.3d 1127, 1128, 823 N.Y.S.2d 258 [3d Dept 2006], defendant does not assert that the alleged deprivation of his right to counsel infected the plea bargaining process or otherwise tainted the voluntariness of his guilty plea (see Whitfield, 52 A.D.3d at 748, 858 N.Y.S.2d 903;  People v. Wolmart, 5 A.D.3d 706, 707, 774 N.Y.S.2d 723 [2d Dept. 2004], lv. denied 4 N.Y.3d 750, 790 N.Y.S.2d 662, 824 N.E.2d 63 [2004]).

We decline to follow the Third Department's determination in People v. Trapani, 162 A.D.3d 1121, 1122 [3d Dept 2018] that a deprivation of counsel contention survives a valid waiver of the right to appeal irrespective of whether the alleged deprivation infected the defendant's guilty plea.

Defendant's further contention that County Court erred in ordering him to pay restitution because restitution was not part of the plea agreement survives both his guilty plea and his unchallenged waiver of the right to appeal (see People v. Spencer, 134 A.D.3d 1553, 1554, 21 N.Y.S.3d 912 [4th Dept. 2015]).  Moreover, contrary to the People's contention, defendant preserved his contention for appellate review by objecting to the imposition of restitution on the same ground he now advances (see People v. Gilmore, 12 A.D.3d 1155, 1156, 785 N.Y.S.2d 231 [4th Dept. 2004]).  On the merits, it is undisputed that the plea bargain did not include restitution, and the court therefore erred in awarding restitution without affording defendant the opportunity to withdraw his plea (see People v. Pett, 74 A.D.3d 1891, 1892, 903 N.Y.S.2d 639 [4th Dept. 2010];  People v. Hunter, 72 A.D.3d 1536, 1536, 898 N.Y.S.2d 905 [4th Dept. 2010];  Gilmore, 12 A.D.3d at 1156, 785 N.Y.S.2d 231).  Therefore, as the People now request, we modify the judgment by vacating that part of the sentence awarding restitution (see People v. Annunziata, 105 A.D.2d 709, 709, 481 N.Y.S.2d 148 [2d Dept. 1984];  see also People v. Feher, 165 A.D.3d 1610, 1611, 85 N.Y.S.3d 656 [4th Dept. 2018], lv denied 32 N.Y.3d 1171, 97 N.Y.S.3d 631, 121 N.E.3d 259 [2019]).

Finally, we note that the uniform sentence and commitment form incorrectly indicates that defendant was sentenced to a definite term of incarceration, and it must be amended to reflect the court's imposition of a determinate term of imprisonment.  The uniform sentence and commitment form must also be amended to clarify that the sentence imposed on count one of the indictment runs concurrently with the sentences imposed on the remaining counts thereof (see People v. Hoke, 167 A.D.3d 1549, 1550, 90 N.Y.S.3d 452 [4th Dept. 2018], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 206, 123 N.E.3d 865 [2019]).