FONTAINE, JON T., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1006
KA 13-00493
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JON T. FONTAINE, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY DAVIS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
JON T. FONTAINE, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered November 1, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the amount of restitution
ordered and as modified the judgment is affirmed, and the matter is
remitted to Monroe County Court for further proceedings in accordance
with the following memorandum: On appeal from a judgment convicting
him, upon his plea of guilty, of attempted burglary in the second
degree (Penal Law §§ 110.00, 140.25 [2]), defendant contends in his
main and pro se supplemental briefs that his waiver of the right to
appeal was not valid. We reject that contention. The plea colloquy,
together with the written waiver of the right to appeal executed by
defendant, establishes that defendant’s waiver of the right to appeal
was knowingly, intelligently, and voluntarily entered (see People v
Johnson, 122 AD3d 1324, 1324; People v Guantero, 100 AD3d 1386, 1386-
1387, lv denied 21 NY3d 1004; People v Jones, 96 AD3d 1637, 1637, lv
denied 19 NY3d 1103). Defendant’s contention in his main and pro se
supplemental briefs that the indictment was facially defective because
it failed to specify the precise date on which the offenses were
committed and instead gave a 13-month time span was forfeited by
defendant’s guilty plea and, in any event, the waiver of the right to
appeal encompasses that contention (see People v Turley, 130 AD3d
1578, 1578, lv denied 26 NY3d 972, reconsideration denied 26 NY3d
1093; People v Slingerland, 101 AD3d 1265, 1265-1266, lv denied 20
NY3d 1104; see generally People v Iannone, 45 NY2d 589, 600-601). The
waiver of the right to appeal also encompasses defendant’s contention
in his main brief that County Court erred in issuing orders of
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KA 13-00493
protection in favor of his father, brother, and stepsister inasmuch as
the orders of protection were disclosed as part of defendant’s plea
prior to both the plea colloquy and defendant’s waiver of the right to
appeal (cf. People v Nicometo, 137 AD3d 1619, 1620; People v Lilley,
81 AD3d 1448, 1448, lv denied 17 NY3d 860).
Defendant’s contention in his main brief that the court erred in
directing him to pay a specified amount of restitution without
conducting a hearing “ ‘is not foreclosed by his waiver of the right
to appeal because the amount of restitution was not included in the
terms of the plea agreement’ ” (People v Tessitore, 101 AD3d 1621,
1622, lv denied 20 NY3d 1104; see People v Burns, 111 AD3d 1293,
1293). We agree with defendant that “the record ‘does not contain
sufficient evidence to establish the amount [of restitution to be
imposed]’ ” (People v Lawson [appeal No. 7], 124 AD3d 1249, 1250). We
thus conclude that the court “ ‘erred in determining the amount of
restitution without holding a hearing’ ” (id.). We therefore modify
the judgment by vacating the amount of restitution ordered, and we
remit the matter to County Court for a hearing to determine the amount
of restitution to be paid by defendant.
We have reviewed defendant’s remaining contentions in his pro se
supplemental brief and conclude that none warrants reversal or further
modification of the judgment.
Entered: November 18, 2016 Frances E. Cafarell
Clerk of the Court