People v. Miller

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 31, 2016 106982
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
CHRISTOPHER MILLER,
Appellant.
________________________________
Calendar Date: February 19, 2016
Before: Peters, P.J., Garry, Rose, Lynch and Clark, JJ.
__________
Susan Patnode, Rural Law Center of New York, Castleton
(Kelly L. Egan of counsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of
counsel), for respondent.
__________
Garry, J.
Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered April 17, 2014, convicting
defendant upon his plea of guilty of the crime of larceny in the
fourth degree.
Defendant pleaded guilty to the reduced charge of grand
larceny in the fourth degree and waived his right to appeal.
County Court sentenced defendant as a second felony offender to a
prison term of 2 to 4 years, ordered shock incarceration
participation and imposed restitution. Defendant appeals.
Initially, we are unpersuaded by defendant's contention
that his waiver of the right to appeal was not knowing, voluntary
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and intelligent. Review of the plea colloquy reveals that County
Court distinguished the right to appeal from the rights
automatically forfeited by the guilty plea, and defendant
executed a written waiver of appeal in open court after he
acknowledged that he understood the waiver of the right to
appeal. Defendant's claim that the sentence is harsh and
excessive is thus precluded by the valid waiver of the right to
appeal (see People v Bethea, 133 AD3d 1033, 1033 [2015]; People v
Beblowski, 131 AD3d 1303, 1304 [2015], lv denied 26 NY3d 1085
[2015]).
Defendant further argues that his plea was based upon an
understanding that he would serve a shorter prison term due to
his anticipated participation in the shock incarceration program.
As this claim challenges the voluntariness of the plea, it would
survive his appeal waiver (see People v Benson, 100 AD3d 1108,
1108-1109 [2012]). However, defendant notes in his brief that he
is not seeking to withdraw or vacate his plea as involuntary, and
his motion before County Court to vacate the sentence on this
ground was withdrawn. In any event, the determination as to
whether to accept any particular individual into that program
lies within the authority of the Department of Corrections and
Community Supervision, rather than the court (see People v
Vanguilder, 32 AD3d 1110, 1110-1111 [2006], lv denied 7 NY3d 904
[2006]; People v Taylor, 284 AD2d 573, 574 [2001], lv denied 96
NY2d 925 [2001]).
Turning to defendant's challenge to the restitution
imposed, the record clearly reflects that defendant was informed
that restitution was part of the underlying plea agreement.
Further, although his challenge to the amount of restitution
imposed survives his valid waiver of appeal, it is unpreserved
given his failure to request a hearing or otherwise contest the
amount of restitution imposed at sentencing (see People v Bethea,
133 AD3d at 1034; People v Miller, 126 AD3d 1233, 1234 [2015], lv
denied 25 NY3d 1168 [2015]), and we decline to exercise our
interest of justice jurisdiction to take corrective action.
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We do, however, find merit in defendant's contention that
County Court improperly ordered him to sell his property in order
to satisfy the restitution amount. Forfeiture of property was
not a condition of the plea agreement. Further, although the
People assert that the court was entitled to decree a forfeiture
of defendant's property as part of the judgment of conviction in
accordance with Penal Law § 60.30, the record does not reflect
that any order or judgment of forfeiture was issued by the court
or that the People complied with the civil forfeiture procedures
set forth in CPLR article 13-A (see People v Carmichael, 123 AD3d
1053, 1053 [2014]; People v McCoy, 96 AD3d 1674, 1675-1676
[2012]).
Peters, P.J., Rose, Lynch and Clark, JJ., concur.
ORDERED that the judgment is modified, on the law, by
vacating that portion of the sentence as ordered defendant's
property sold, and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court