PEOPLE v. PARKER (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered June 5, 2015, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In full satisfaction of a seven-count indictment, defendant agreed to plead guilty to one count of criminal possession of a controlled substance in the third degree with the understanding that he would be sentenced to a prison term of eight years followed by three years of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal and provided that defendant would make restitution to “CNET, New York State Police.”  Defendant pleaded guilty in conformity with the plea agreement, and County Court sentenced defendant as a second felony offender to the contemplated term of imprisonment and ordered restitution in the amount of $200 for buy money.  This appeal ensued.

Contrary to defendant's assertion, we find that his combined oral and written waiver of the right to appeal was valid.  Although County Court's explanation of the waiver “arguably could have been more expansive” (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]), defendant was made aware – prior to pleading guilty – that a waiver of the right to appeal was part of the plea agreement (see People v. Pace, 192 A.D.3d 1274, 1274, 142 N.Y.S.3d 678 [2021];  People v. Bowden, 177 A.D.3d 1037, 1038, 114 N.Y.S.3d 482 [2019], lv denied 34 N.Y.3d 1157, 120 N.Y.S.3d 238, 142 N.E.3d 1140 [2020]), and County Court made clear that such waiver was separate and distinct from the trial-related rights that defendant was forfeiting by pleading guilty (see People v. Williams, 185 A.D.3d 1352, 1353, 126 N.Y.S.3d 440 [2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 526, 158 N.E.3d 543 [2020];  People v. Bridge, 166 A.D.3d 1168, 1168, 86 N.Y.S.3d 345 [2018], lv denied 32 N.Y.3d 1124, 93 N.Y.S.3d 262, 117 N.E.3d 821 [2018]).  Additionally, defendant executed a detailed written waiver in open court, which County Court confirmed defendant had reviewed with counsel, and defendant twice indicated that he had no questions with respect to the waiver of his appellate rights (see People v. Williams, 185 A.D.3d at 1353, 126 N.Y.S.3d 440;  People v. Salmon, 179 A.D.3d 1404, 1404, 117 N.Y.S.3d 764 [2020];  People v. Sassenscheid, 162 A.D.3d 1108, 1109, 78 N.Y.S.3d 491 [2018]).  As we are satisfied that defendant's appeal waiver was valid, his challenge to the sentence imposed as harsh and excessive is precluded (see People v. Daniels, 193 A.D.3d 1179, 1180, 146 N.Y.S.3d 680 [2021]).

As to the issue of restitution, because the amount of restitution to be ordered was not part of the plea agreement, defendant's challenge thereto is not precluded by his valid appeal waiver (see People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020];  People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019]).  That said, defendant's arguments regarding the sum at issue and/or the sufficiency of the People's proof are unpreserved for our review due to defendant's failure to request a restitution hearing or otherwise object to the amount of restitution at the time of sentencing (see People v. Ryan, 176 A.D.3d 1399, 1401–1402, 111 N.Y.S.3d 433 [2019], lv denied 34 N.Y.3d 1081, 116 N.Y.S.3d 155, 139 N.E.3d 813 [2019];  People v. Haggray, 164 A.D.3d 1522, 1526, 83 N.Y.S.3d 374 [2018], lv denied 32 N.Y.3d 1111, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018];  People v. Villnave, 117 A.D.3d 1178, 1179, 984 N.Y.S.2d 704 [2014]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.