Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Christopher Eaggleston of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted assault in the second degree (Penal Law §§ 110.00, 120.05[3] ) and driving while ability impaired by drugs (Vehicle and Traffic Law § 1192[4] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). The challenge by defendant to County Court's suppression ruling is encompassed by his valid waiver of the right to appeal ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754; People v. Goossens, 92 A.D.3d 1282, 1283, 938 N.Y.S.2d 486, lv. denied19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210). Although defendant's contention that his guilty plea was not knowing, voluntary, or intelligent survives his valid waiver of the right to appeal, defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground and thus failed to preserve that contention for our review ( see People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587, lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449). Contrary to defendant's further contention, this case does not fall within the rare exception to the preservation requirement because nothing in the plea allocution calls into question the voluntariness of the plea or casts “ significant doubt” upon his guilt (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see People v. Cubi, 104 A.D.3d 1225, 1226, 960 N.Y.S.2d 585, lv. denied21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1277).
To the extent that defendant's further contention that the court erred in denying his application for a subpoena duces tecum survives the guilty plea and his valid waiver of the right to appeal ( see generally People v. Morris, 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725, lv. denied19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768), we conclude that it lacks merit. Inasmuch as the records sought pertain solely to the credibility of a witness, the court did not abuse its discretion in denying defendant's subpoena request ( see People v. Gissendanner, 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Scott, 60 A.D.3d 1396, 1397, 876 N.Y.S.2d 271, lv. denied 12 N.Y.3d 821, 881 N.Y.S.2d 29, 908 N.E.2d 937; People v. Reddick, 43 A.D.3d 1334, 1335, 843 N.Y.S.2d 201, lv. denied10 N.Y.3d 815, 857 N.Y.S.2d 48, 886 N.E.2d 813).
Although defendant's challenge to the amount of restitution “ ‘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 A.D.3d 1621, 1622, 956 N.Y.S.2d 372, lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538), he failed to preserve that challenge for our review inasmuch as he did not object to the amount of restitution at sentencing or request a hearing on that issue ( see People v. Kirkland, 105 A.D.3d 1337, 1338–1339, 963 N.Y.S.2d 793, lv. denied21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856; People v. Jorge N.T., 70 A.D.3d 1456, 1457, 894 N.Y.S.2d 625, lv. denied14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012). Indeed, defendant expressly consented to the amount of restitution at sentencing ( see People v. Harris, 31 A.D.3d 1194, 1195, 817 N.Y.S.2d 567, lv. denied7 N.Y.3d 848, 823 N.Y.S.2d 778, 857 N.E.2d 73; People v. Solerwitz, 172 A.D.2d 780, 781, 570 N.Y.S.2d 977, lv. denied78 N.Y.2d 947, 573 N.Y.S.2d 642, 578 N.E.2d 440).
Finally, defendant failed to preserve for our review his contention that the court erred in imposing a collection surcharge of 10% of the amount of restitution ( see Kirkland, 105 A.D.3d at 1338, 963 N.Y.S.2d 793). In any event, Penal Law § 60.27(8) provides that a court must impose a surcharge of 5% of the amount of restitution and may impose an additional surcharge of up to 5% “[u]pon the filing of an affidavit of the official or organization designated pursuant to [CPL 420.10(8) ] demonstrating that the actual cost of the collection and administration of restitution or reparation in a particular case exceeds five percent of the entire amount of the payment or the amount actually collected” ( see Kirkland, 105 A.D.3d at 1338–1339, 963 N.Y.S.2d 793) and, here, the record includes such an affidavit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
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