PEOPLE v. EATMON (2022)

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 a guilty plea of, inter alia, three counts of burglary in the second degree (Penal Law § 140.25 [2]), one count of attempted burglary in the second degree (§§ 110.00, 140.25 [2]), and one count of grand larceny in the third degree (§ 155.35 [1]). As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid inasmuch as County Court failed to fully explain the waiver to defendant until the time of his restitution hearing, which took place approximately two months after he completed the plea proceeding (see People v. Mobayed, 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018]; see generally People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]). “[T]o the extent that the purported waiver of the right to appeal was obtained at [the restitution hearing], it is not valid inasmuch as the court failed to obtain a knowing and voluntary waiver of that right at the time of the plea” (People v. Brown, 148 A.D.3d 1562, 1562-1563, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017]).

Defendant further contends that his plea was not knowingly, voluntarily, and intelligently entered because he was not informed, at the time he entered his plea, of the specific amount of restitution that he would have to pay. At the plea proceeding, defendant was informed that his sentence would include restitution, the amount of which would be determined at a restitution hearing. At a hearing held after the entry of the plea, the People presented the testimony of a victim that, although she recovered some of the property that was stolen when defendant burglarized her home, she did not recover several pieces of jewelry with a total value of $135,225. The court found the witness's testimony regarding the value of the jewelry to be credible, determined that the People had sustained their burden of establishing the amount of restitution by a preponderance of the evidence (see generally People v. Consalvo, 89 N.Y.2d 140, 145, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996]), and ordered defendant to pay restitution in the amount of $148,747.50, representing the total loss plus a 10% collection surcharge. Inasmuch as defendant did not move to withdraw his plea of guilty before the sentence was imposed on the basis of the amount of restitution, he failed to preserve for appellate review his contention that the lack of a specific amount of restitution in the terms of his plea agreement rendered the plea involuntary (see People v. Niedwieski, 100 A.D.3d 1023, 1023, 954 N.Y.S.2d 226 [2d Dept. 2012], lv denied 21 N.Y.3d 913, 966 N.Y.S.2d 365, 988 N.E.2d 894 [2013]; see generally People v. DeScisciolo, 109 A.D.3d 666, 666, 970 N.Y.S.2d 878 [2d Dept. 2013]).

Further, we reject defendant's contention that the court erred in determining the amount of restitution. The court properly “credit[ed] the testimony and documentation presented by the People and [determined] that the loss incurred was established by a preponderance of the evidence” (People v. Osborne, 161 A.D.3d 1485, 1486, 77 N.Y.S.3d 774 [3d Dept. 2018]), and defendant failed “ ‘to offer evidence contradicting the People's calculation’ ” (id.).

We also reject defendant's contention that the court erred in failing to make an inquiry when he raised a complaint about defense counsel. “Even assuming, arguendo, that defendant's complaint[ ] about defense counsel suggested a serious possibility of good cause for a substitution of counsel requiring a need for further inquiry,” we conclude that “the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit” (People v. Bethany, 144 A.D.3d 1666, 1669, 42 N.Y.S.3d 495 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017], cert denied ––– U.S. ––––, 138 S. Ct. 1571, 200 L.Ed.2d 760 [2018]).

The sentence is not unduly harsh or severe. We have considered defendant's remaining contentions, and we conclude that they do not warrant modification or reversal of the judgment.