PEOPLE v. GONZALEZ (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Joseph Cawley, J.), rendered January 6, 2022, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

Defendant waived indictment and pleaded guilty to assault in the second degree as charged in a superior court information, pursuant to a plea agreement that required that he execute a waiver of appeal.  This plea agreement also resolved, among other things, numerous other felony and misdemeanor charges.  In exchange, defendant was promised a sentence of time served and five years of probation, provided he abide by certain postplea conditions including, as relevant here, not being charged with further criminal conduct.  Defendant was released from custody and subsequently arrested and charged with new criminal conduct.  County Court thereafter advised defendant that it intended to impose an enhanced sentence, and, after defendant waived a hearing, the court imposed a prison term of two years, to be followed by three years of postrelease supervision.  The court also directed defendant to pay restitution.  Defendant appeals.

We affirm.  Contrary to defendant's claims, his waiver of appeal is valid (see People v. Sindoni, 226 A.D.3d 1218, 1219, 209 N.Y.S.3d 644 [3d Dept. 2024];  People v. Wint, 222 A.D.3d 1050, 1050, 201 N.Y.S.3d 544 [3d Dept. 2023], lv denied 41 N.Y.3d 945, 206 N.Y.S.3d 248, 229 N.E.3d 1141 [2024]).  The record reflects that defendant was informed during the plea colloquy that a waiver of his right to appeal was a condition of his plea agreement, and that this waiver was separate and distinct from the trial-related rights forfeited by his guilty plea.  Defendant and defense counsel thereafter confirmed that they had reviewed the waiver, and defendant indicated his understanding and acceptance of that term.  Defendant then executed a detailed written waiver of his right to appeal that, although containing some overbroad language, is identical to waivers of appeal this Court has previously found to be valid in that it “expressly delineated the appellate rights that were not encompassed by the waiver” (People v. Wint, 222 A.D.3d at 1051, 201 N.Y.S.3d 544;  see People v. Sindoni, 226 A.D.3d at 1219, 209 N.Y.S.3d 644;  People v. Crampton, 201 A.D.3d 1020, 1021, 159 N.Y.S.3d 263 [3d Dept. 2022], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022];  People v. Thompson, 193 A.D.3d 1186, 1186–1187, 145 N.Y.S.3d 204 [3d Dept. 2021]).  As the combined oral and written appeal waiver made clear that appellate review of certain issues survive the waiver, we find that defendant's waiver of appeal was knowing, voluntary and intelligent (see People v. Lopez, 6 N.Y.3d 248, 253, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Sindoni, 226 A.D.3d at 1219, 209 N.Y.S.3d 644).  Given the valid appeal waiver and County Court's advisement of the consequences of incurring additional criminal charges prior to sentencing, defendant's challenge to the severity of the enhanced sentence is precluded (see People v. Lane, ––– A.D.3d ––––, ––––, 223 N.Y.S.3d 428, –––– [3d Dept. 2024]).  Considering defendant's waiver of an Outley hearing and his failure to otherwise challenge the validity of his postplea arrest, his procedural challenge to the imposition of an enhanced sentence is unpreserved for our review (see People v. James, 231 A.D.3d 1435, 1436, 221 N.Y.S.3d 318 [3d Dept. 2024];  People v. Davis, 199 A.D.3d 1123, 1125, 156 N.Y.S.3d 568 [3d Dept. 2021], lv. denied 37 N.Y.3d 1160, 160 N.Y.S.3d 692, 181 N.E.3d 1120 [2020]).

Defendant further argues that the restitution orders should be vacated in that the record does not contain sufficient evidence to support the amount ordered of $6,720.10.  Although the appeal waiver does not preclude defendant's assertion given that the exact amount of restitution was not specified as part of the plea agreement (see People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [3d Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020]), during the plea proceedings, defense counsel acknowledged that contemplated restitution would be in excess of $6,000, and defendant neither requested a hearing nor objected to the amount of restitution imposed at the time of sentencing.  Thus, the issue is unpreserved for our review (see People v. Horne, 97 N.Y.2d 404, 414 n 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002];  People v. Ryan, 176 A.D.3d 1399, 1402, 111 N.Y.S.3d 433 [3d Dept. 2019], lv denied 34 N.Y.3d 1081, 116 N.Y.S.3d 155, 139 N.E.3d 813 [2019]).

ORDERED that the judgment is affirmed.

Garry, P.J., Egan Jr., Pritzker, Powers and Mackey, JJ., concur.