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People v. Rubio , 20 N.Y.S.3d 666 ( 2015 )


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  •                             State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: November 19, 2015                     106621
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                       MEMORANDUM AND ORDER
    CHRISTOPHER RUBIO,
    Appellant.
    ________________________________
    Calendar Date:   October 19, 2015
    Before:   McCarthy, J.P., Rose, Devine and Clark, JJ.
    __________
    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
    -2-                106621
    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
    -3-                106621
    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.
    -4-                  106621
    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
    

Document Info

Docket Number: 106621

Citation Numbers: 133 A.D.3d 1041, 20 N.Y.S.3d 666

Judges: Clark

Filed Date: 11/19/2015

Precedential Status: Precedential

Modified Date: 11/1/2024