PEOPLE v. DUNN (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 23, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in full satisfaction of a nine-count indictment and waived the right to appeal.  County Court sentenced him, as a second felony offender, to six years in prison, to be followed by three years of postrelease supervision, and ordered restitution in the amount of $450.  Defendant now appeals.¹

Contrary to defendant's contention, his waiver of the right to appeal was valid.  County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and defendant affirmed his understanding thereof.  Defendant also executed a written waiver, which both he and his counsel signed, that included the acknowledgment that he was waiving the right to appeal after discussing the waiver with counsel.  Accordingly, we conclude that defendant's appeal waiver was knowing, intelligent and voluntary (see People v. Peterkin, 156 A.D.3d 962, 963, 64 N.Y.S.3d 617 [2017];  People v. Plass, 150 A.D.3d 1558, 1559, 56 N.Y.S.3d 581 [2017], lv denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ).

Defendant also claims that County Court improperly ordered him to pay $450 in restitution.  As part of the plea agreement, the People requested and defendant agreed to pay $250 in restitution, which the People represented as the amount of the funds used in a controlled buy that had not already been recovered (see Penal Law § 60.27[9] ).  At sentencing, however, the People requested restitution in the amount of $450, without offering any evidence in support of the increased amount, and County Court so ordered.  On appeal, the People concede that the restitution ordered does not conform with the plea agreement and that a modification is warranted.  Although defendant failed to preserve his challenge by requesting a hearing or objecting to the amount ordered (see People v. Nesbitt, 144 A.D.3d 1329, 1330, 41 N.Y.S.3d 176 [2016];  People v. Morehouse, 140 A.D.3d 1202, 1204, 33 N.Y.S.3d 491 [2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016] ), we deem it appropriate to exercise our interest of justice jurisdiction and modify the judgment, only insofar as it directs defendant to pay restitution in the amount of $450, and reduce the amount of restitution to $250 so as to conform with the plea agreement.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the amount of restitution to $250, and, as so modified, affirmed.

FOOTNOTES

1.   Although defendant's notice of appeal sets forth the incorrect date of the judgment of conviction, we exercise our discretion to overlook this inaccuracy and treat the notice of appeal as valid (see CPL 460.10[6] ).

Egan Jr., J.P.

Lynch, Devine, Clark and Mulvey, JJ., concur.