State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 19, 2015 106621
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
CHRISTOPHER RUBIO,
Appellant.
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Calendar Date: October 19, 2015
Before: McCarthy, J.P., Rose, Devine and Clark, JJ.
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Cliff Gordon, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Hannah
Rose Prall of counsel), for respondent.
__________
Clark, J.
Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered December 19, 2013, convicting
defendant upon his plea of guilty of the crimes of burglary in
the second degree and criminal possession of a weapon in the
second degree.
In September 2013, defendant pleaded guilty to one count of
burglary in the second degree and one count of criminal
possession of a weapon in the second degree in full satisfaction
of a seven-count indictment upon his admission that he, acting in
concert with another individual, entered a residence, stole five
handguns and, thereafter, possessed a loaded handgun without
permission or license to do so. In exchange for a sentence of
imprisonment of not less than seven years but no more than 10
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years followed by five years of postrelease supervision,
defendant agreed to sign a separate and distinct waiver of appeal
in open court. At sentencing, the People informed County Court
that there was an insurance claim of $400 for damage to the
homeowner's gun case and $2,400 for the stolen handguns. County
Court sentenced defendant to a prison term of 10 years, followed
by five years of postrelease supervision, and imposed $2,800 in
restitution. Defendant appeals.
Initially, we reject defendant's assertion that County
Court did not properly ensure that defendant knowingly,
voluntarily and intelligently waived his right to appeal. A
review of the plea minutes reveals that County Court explained to
defendant that he was waiving his right to appeal, that defendant
explicitly waived his appeal rights without qualification during
the allocution and that he was advised by the court that the
appeal waiver was separate and distinct from those rights that he
forfeited by his guilty plea (see People v Lopez, 6 NY3d 248, 256
[2006]; People v Spellicy, 123 AD3d 1228, 1229 [2014], lv denied
25 NY3d 992 [2015]). Defendant also executed a written appeal
waiver, which adequately described the scope of the appellate
rights waived and which included defendant's acknowledgment that
he was knowingly, voluntarily and intelligently waiving those
rights after having been given sufficient time to discuss the
consequences of the waiver with counsel (see People v Tyler, 130
AD3d 1383, 1384 [2015]; People v Turner, 126 AD3d 1228, 1229
[2015]). Consequently, the valid waiver precludes review of his
challenge to the sentence as harsh and excessive (see People v
Lopez, 6 NY3d at 255-256; People v Jackson, 129 AD3d 1342, 1342
[2015]).
Next, defendant argues that, because the plea bargain did
not include restitution, County Court erred in ordering
restitution and in failing to conduct a restitution hearing.
Preliminarily, under the circumstances presented, we note that
neither defendant's appeal waiver (see People v Skerritt, 128
AD3d 1110, 1111 [2015]; People v Culcleasure, 75 AD3d 832, 832
[2010]; People v Thomas, 71 AD3d 1231, 1232 [2010], lv denied 14
NY3d 893 [2010]; People v Travis, 64 AD3d 808, 808 [2009]) nor
his failure to preserve this issue through an objection at
sentencing (see People v Culcleasure, 75 AD3d at 832; People v
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McDowell, 56 AD3d 955, 956 [2008]; People v Snyder, 23 AD3d 761,
762-763 [2005]) is fatal to the claim. Turning to the merits,
"[w]here . . . a plea agreement does not include mention of
restitution, a defendant must be given the opportunity to either
withdraw his [or her] plea or accept the greater sentence of
restitution" (People v Snyder, 23 AD3d at 762 [internal quotation
marks and citation omitted]; see People v McDowell, 56 AD3d at
956). Here, a review of the plea colloquy and the sentencing
minutes reveals that no mention of restitution was made until the
sentence was pronounced, and there is also no evidence in the
record to substantiate the amount of restitution requested by the
People and awarded by the court (see Penal Law § 60.27 [2];
People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900
[2011]; People v Travis, 64 AD3d at 808-809). Indeed, defendant
was first made aware that restitution would be imposed at
sentencing when the People informed County Court that the victim
received insurance proceeds in the amount of $400 for damage to
his firearm cabinet and $2,400 for his stolen firearms.
Accordingly, in light of County Court's failure to afford
defendant the opportunity to either withdraw his plea or accept
the enhanced sentence of restitution, this matter must be
remitted for that purpose (see People v Gantt, 63 AD3d 1379, 1380
[2009]; People v McDowell, 56 AD3d at 956). Alternatively, the
court may impose the sentence that was promised in the plea
agreement (see People v Gantt, 63 AD3d at 1380; People v Snyder,
23 AD3d at 763). In the event that restitution is ordered,
defendant should be offered the opportunity of a hearing as to
the appropriate amount (see People v Gantt, 63 AD3d at 1380;
People v Sawyer, 55 AD3d 949, 951-952 [2008]).
McCarthy, J.P., Rose and Devine, JJ., concur.
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ORDERED that the judgment is modified, on the law, by
vacating the sentence imposed; matter remitted to the County
Court of Sullivan County for further proceedings not inconsistent
with this Court's decision; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court