PEOPLE v. STEBBINS (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered November 24, 2015, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree and burglary in the third degree.

In July 2015, defendant waived indictment and pleaded guilty to two superior court informations charging him with robbery in the second degree and burglary in the third degree and waived his right to appeal, both orally and in writing.  Consistent with the terms of the plea agreement, defendant was sentenced to seven years for his robbery conviction and to a lesser concurrent sentence on his burglary conviction and was ordered to pay $133.75 in restitution and $375 in a mandatory surcharge and fees.  Defendant appeals.¹

We affirm.  Contrary to defendant's contention, the plea colloquy demonstrates that he knowingly, voluntarily and intelligently waived his right to appeal.  The record reflects that, at the outset of the plea proceeding, County Court advised defendant that the waiver of the right to appeal was a condition of the plea agreement, and defendant acknowledged his understanding of the plea agreement and its terms (see People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018];  People v. Charles, 163 A.D.3d 1362, 1362, 82 N.Y.S.3d 221 [2018], lv denied 32 N.Y.3d 1063, 89 N.Y.S.3d 118, 113 N.E.3d 952 [2018];  People v. Gilbert, 145 A.D.3d 1196, 1196, 43 N.Y.S.3d 556 [2016], lvs denied 28 N.Y.3d 1184, 1187, 52 N.Y.S.3d 711, 714, 75 N.E.3d 103, 106 [2017] ).  County Court then advised defendant that his right to appeal was separate and distinct from the trial-related rights automatically forfeited by his guilty plea, and defendant confirmed that he understood the nature of the waiver and that he was voluntarily waiving his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Rogers, 162 A.D.3d 1410, 1410, 75 N.Y.S.3d 923 [2018];  People v. Tucker, 161 A.D.3d 1481, 1482, 78 N.Y.S.3d 450 [2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018];  People v. Stein, 161 A.D.3d 1389, 1390, 77 N.Y.S.3d 579 [2018] ).  Further, defendant reviewed with counsel and executed a written waiver of appeal in open court that adequately described the nature and scope of the appellate rights being waived and acknowledged, among other things, that he was waiving his right to appeal in consideration of the plea agreement (see People v. Watkins, 166 A.D.3d 1239, 1240, 88 N.Y.S.3d 281 [2018], lv denied 33 N.Y.3d 955, 100 N.Y.S.3d 179, 123 N.E.3d 838, 2019 WL 1579681 [Mar. 19, 2019];  People v. Stein, 161 A.D.3d at 1390, 77 N.Y.S.3d 579;  People v. Zeller, 153 A.D.3d 1049, 1050, 60 N.Y.S.3d 588 [2017] ).  Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v. Cherry, 166 A.D.3d at 1221, 86 N.Y.S.3d 355;  People v. Turner, 158 A.D.3d 892, 892, 70 N.Y.S.3d 610 [2018] ).  Given that defendant's ineffective assistance of counsel claim relates to the agreed-upon sentence and does not implicate the voluntariness of his plea, the claim is precluded by the valid waiver of appeal (see People v. Bouck, 153 A.D.3d 1522, 1523–1524, 61 N.Y.S.3d 388 [2017], lv denied 30 N.Y.3d 1017, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017];  People v. White, 145 A.D.3d 1324, 1325, 44 N.Y.S.3d 247 [2016];  People v. Daniels, 16 A.D.3d 780, 780–781, 790 N.Y.S.2d 759 [2005];  People v. Howard, 1 A.D.3d 718, 719, 766 N.Y.S.2d 641 [2003] ).

Defendant's contention that his plea was not knowing, intelligent and voluntary survives his appeal waiver (see People v. Bond, 146 A.D.3d 1155, 1156, 44 N.Y.S.3d 776 [2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017];  People v. Giammichele, 144 A.D.3d 1320, 1320, 40 N.Y.S.3d 794 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ), but it is unpreserved for our review as there is no indication in the record that defendant made an appropriate postallocution motion despite having ample opportunity to do so prior to sentencing (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Dickerson, 168 A.D.3d 1194, 1194–1195, 90 N.Y.S.3d 702 [2019];  People v. Duvall, 157 A.D.3d 1060, 1060–1061, 66 N.Y.S.3d 754 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ).  Further, defendant did not make any statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Pastor, 28 N.Y.3d 1089, 1090, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Quell, 166 A.D.3d 1388, 1389, 86 N.Y.S.3d 814 [2018], lv denied 32 N.Y.3d 1208, 99 N.Y.S.3d 204, 122 N.E.3d 1117 [2019];  People v. Horton, 166 A.D.3d 1226, 1227, 86 N.Y.S.3d 352 [2018];  People v. Cherry, 166 A.D.3d at 1222, 86 N.Y.S.3d 355).

As for defendant's claim that County Court was without authority pursuant to Penal Law § 60.35(6) to impose both restitution and the mandatory surcharge/crime victim assistance fee, “defendant failed to object to the surcharge at the time it was imposed or move for resentencing pursuant to CPL 420.10(5);  as such, this issue is not preserved for our review” (People v. Salmans, 49 A.D.3d 961, 962, 853 N.Y.S.2d 675 [2008];  see People v. Dunn, 254 A.D.2d 511, 512, 680 N.Y.S.2d 125 [1998], lv denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451 [1998], cert denied 527 U.S. 1024, 119 S.Ct. 2372, 144 L.Ed.2d 775 [1999];  People v. Burt, 142 A.D.2d 794, 794, 531 N.Y.S.2d 131 [1988] ).  In any event, were we to address this claim, we would find it to be without merit because defendant had not yet made restitution (see Penal Law § 60.35[6];  People v. Quinones, 95 N.Y.2d 349, 352, 717 N.Y.S.2d 86, 740 N.E.2d 231 [2000];  People v. Ortolaza, 120 A.D.3d 843, 844, 991 N.Y.S.2d 171 [2014], lv denied 25 N.Y.3d 991, 10 N.Y.S.3d 534, 32 N.E.3d 971 [2015];  People v. Morse, 111 A.D.3d 1161, 1162, 975 N.Y.S.2d 496 [2013], lv denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014];  People v. Leone, 105 A.D.3d 1249, 1250, 963 N.Y.S.2d 480 [2013], lv denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant does not challenge that portion of the judgment convicting him of burglary in the third degree.

Clark, J.

Garry, P.J., Mulvey, Devine and Rumsey, JJ., concur.