People v. Meyer

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

Memorandum:Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the second degree ( Penal Law § 155.40[1] ). We agree with defendant that the waiver of the right to appeal is invalid because "the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Hassett, 119 A.D.3d 1443, 1443–1444, 988 N.Y.S.2d 831 [4th Dept. 2014], lv denied 24 N.Y.3d 961, 996 N.Y.S.2d 220, 20 N.E.3d 1000 [2014] [internal quotation marks omitted] ). In addition, "there is no basis [in the record] upon which to conclude that the court ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Jones, 107 A.D.3d 1589, 1590, 966 N.Y.S.2d 724 [4th Dept. 2013], lv denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013], quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

Defendant contends that there is no basis in the record supporting the amount of restitution and that the court should have conducted a hearing before determining the amount thereof. Defendant failed to preserve that contention for our review by failing to object to the imposition of restitution at sentencing or to request a hearing (see People v. M & M Med. Transp., Inc., 147 A.D.3d 1313, 1314–1315, 46 N.Y.S.3d 342 [4th Dept. 2017] ; People v. Lewis, 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; People v. Spossey, 107 A.D.3d 1420, 1420, 966 N.Y.S.2d 640 [4th Dept. 2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] ). In any event, that contention is without merit inasmuch as defendant "concede[d] the facts necessary to establish the amount of restitution as part of [the] plea allocution" ( People v. Consalvo, 89 N.Y.2d 140, 145, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996] ; see People v. Price, 277 A.D.2d 955, 955–956, 716 N.Y.S.2d 537 [4th Dept. 2000] ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.