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Docket Number

No. 388 KA 20-01652

Attorney(S)

KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

Judges

Stephen K. Lindley
Nancy E. Smith
John V. Centra

Acts

Offenses Involving Damage To And Intrusion Upon Property — Penal — Burglary And Related Offenses — Burglary in the second degree

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Smart Summary

Case Summary: The People of the State of New York v. Jonathan B. Eatmon

Factual and Procedural Background

Defendant pleaded guilty and was convicted (judgment rendered June 5, 2018, Ontario County Court) of three counts of burglary in the second degree, one count of attempted burglary in the second degree, one count of grand larceny in the third degree, and two counts of petit larceny. At the plea proceeding defendant was informed restitution would be imposed and its amount determined at a later restitution hearing. Approximately two months after the plea the court held a restitution hearing at which a victim testified that several pieces of jewelry with a total value of $135,225 were not recovered. The court found the testimony credible, determined restitution by a preponderance of the evidence, and ordered restitution of $148,747.50 (total loss plus 10% collection surcharge). Defendant appealed; the People conceded that the defendant's purported waiver of the right to appeal was invalid because the court fully explained the waiver only at the restitution hearing. The Appellate Division unanimously affirmed the judgment.

Legal Issues Presented

Whether the defendant's purported waiver of the right to appeal was valid given that the court fully explained the waiver only at the restitution hearing held after the plea.
Whether the guilty plea was knowingly, voluntarily, and intelligently entered when the specific amount of restitution was not stated at the plea proceeding.
Whether the court erred in determining the amount of restitution awarded.
Whether the court erred in failing to make further inquiry after defendant raised a complaint about defense counsel.
Whether the sentence imposed was unduly harsh or severe.

Arguments of the Parties

Defendant's Arguments

The purported waiver of the right to appeal was invalid because the court did not fully explain the waiver until the restitution hearing roughly two months after the plea.
The guilty plea was not knowingly, voluntarily, and intelligently entered because the specific restitution amount was not disclosed at the plea proceeding.
The court erred in determining the amount of restitution.
The court erred in failing to make further inquiry after defendant complained about defense counsel.

Respondent's Arguments (The People)

The People conceded the purported appellate waiver was invalid due to the court's delayed explanation at the restitution hearing.
At the restitution hearing the People presented testimony and documentation establishing unrecovered jewelry valued at $135,225 and sought restitution (including a 10% surcharge), which the court credited.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Mobayed, 158 A.D.3d 1221, 1222 [4th Dept 2018], lv denied 31 N.Y.3d 1015 [2018]	Waiver of the right to appeal is invalid where County Court failed to fully explain the waiver until the restitution hearing held after the plea.	Cited to support the conclusion that the purported waiver was invalid because the court did not fully explain the waiver until the restitution hearing.
People v Bradshaw, 18 N.Y.3d 257, 265 [2011]	General principles regarding plea waivers and related proceedings.	Referenced generally in support of the waiver-analysis regarding explanation timing and validity.
People v Brown, 148 A.D.3d 1562, 1562-1563 [4th Dept 2017], lv denied 29 N.Y.3d 1124 [2017]	To the extent a purported waiver of the right to appeal is obtained at a later hearing, it is not valid if the court failed to obtain a knowing and voluntary waiver at the time of the plea.	Cited to reinforce that a waiver first addressed at the restitution hearing is invalid absent a knowing and voluntary waiver at plea time.
People v Consalvo, 89 N.Y.2d 140, 145 [1996]	The People must establish the amount of restitution by a preponderance of the evidence.	Cited as the governing standard for the burden of proof at the restitution hearing; the court found the People met that burden.
People v Niedwieski, 100 A.D.3d 1023, 1023 [2d Dept 2012], lv denied 21 N.Y.3d 913 [2013]	Claims that could have been raised by moving to withdraw a plea before sentence are not preserved for appeal if not so moved.	Cited to hold defendant failed to preserve his claim that the plea was involuntary due to lack of specific restitution amount because he did not move to withdraw the plea before sentencing.
People v DeScisciolo, 109 A.D.3d 666, 666 [2d Dept 2013]	Preservation principle regarding motions to withdraw pleas prior to sentencing.	Referenced generally alongside Niedwieski to support the preservation ruling.
People v Osborne, 161 A.D.3d 1485, 1486 [3d Dept 2018]	Court may credit the People's testimony and documentation establishing loss by a preponderance; defendant's failure to offer contradictory evidence is relevant.	Cited to support the court's credibility finding and determination that the People established the amount of loss and that defendant offered no contradictory evidence.
People v Bethany, 144 A.D.3d 1666, 1669 [4th Dept 2016], lv denied 29 N.Y.3d 996 [2017], cert denied __US__, 138 S.Ct. 1571 [2018]	Where a defendant's complaint about counsel may suggest a serious possibility of good cause for substitution, the court must afford the defendant an opportunity to express objections and then reasonably determine merit.	Cited to support the conclusion that the court reasonably afforded defendant an opportunity to express objections and properly concluded they were without merit, thus no further inquiry was required.

Court's Reasoning and Analysis

The court reasoned as follows:

The purported waiver of the right to appeal was invalid because County Court did not fully explain the waiver until the restitution hearing held about two months after the plea; the People conceded this point and the court relied on precedents (Mobayed; Bradshaw; Brown) establishing that a waiver addressed only at a later hearing is not valid if a knowing and voluntary waiver was not obtained at the plea.
Regarding voluntariness of the plea tied to restitution: defendant was informed at plea that restitution would be imposed and its amount determined later. Because defendant did not move to withdraw the plea before sentencing, his claim that the lack of a specific restitution amount rendered the plea involuntary was unpreserved (citing Niedwieski; DeScisciolo).
On the merits of restitution, the court credited the victim's testimony and documentation that several pieces of jewelry valued $135,225 were unrecovered, applied the Consalvo preponderance standard, and ordered restitution of $148,747.50 (including 10% surcharge). The court rejected defendant's challenge because he failed to offer evidence contradicting the People's calculation (citing Osborne).
On the complaint about defense counsel, even assuming the complaint could suggest good cause for substitution, the court had afforded defendant the opportunity to express objections and reasonably concluded those objections were without merit; accordingly no further inquiry or substitution was required (citing Bethany).
The court found the sentence not unduly harsh or severe and, after considering remaining contentions, concluded none warranted modification or reversal.

Holding and Implications

Judgment unanimously affirmed.

Direct effects: the trial court's judgment convicting defendant on the stated counts and imposing sentence (including restitution of $148,747.50) is affirmed. The opinion does not announce broader new legal principles; it applies existing precedents to resolve waiver, preservation, restitution-proof, and counsel-inquiry issues.

Show full summary ...

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JONATHAN B. EATMON, DEFENDANT-APPELLANT.

KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND CURRAN, JJ.

Appeal from a judgment of the Ontario County Court (Brian D. Dennis, J.), rendered June 5, 2018. The judgment convicted defendant upon his plea of guilty of burglary in the second degree (three counts), attempted burglary in the second degree, grand larceny in the third degree and petit larceny (two counts).

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

Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea of, inter alia, three counts of burglary in the second degree (Penal Law § 140.25 [2]), one count of attempted burglary in the second degree (§§ 110.00, 140.25 [2]), and one count of grand larceny in the third degree (§ 155.35 [1]). As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid inasmuch as County Court failed to fully explain the waiver to defendant until the time of his restitution hearing, which took place approximately two months after he completed the plea proceeding (see People v Mobayed, 158 A.D.3d 1221, 1222 [4th Dept 2018], lv denied 31 N.Y.3d 1015 [2018]; see generally People v Bradshaw, 18 N.Y.3d 257, 265 [2011]). "[T]o the extent that the purported waiver of the right to appeal was obtained at [the restitution hearing], it is not valid inasmuch as the court failed to obtain a knowing and voluntary waiver of that right at the time of the plea" (People v Brown, 148 A.D.3d 1562, 1562-1563 [4th Dept 2017], lv denied 29 N.Y.3d 1124 [2017]).

Defendant further contends that his plea was not knowingly, voluntarily, and intelligently entered because he was not informed, at the time he entered his plea, of the specific amount of restitution that he would have to pay. At the plea proceeding, defendant was informed that his sentence would include restitution, the amount of which would be determined at a restitution hearing. At a hearing held after the entry of the plea, the People presented the testimony of a victim that, although she recovered some of the property that was stolen when defendant burglarized her home, she did not recover several pieces of jewelry with a total value of $135,225. The court found the witness's testimony regarding the value of the jewelry to be credible, determined that the People had sustained their burden of establishing the amount of restitution by a preponderance of the evidence (see generally People v Consalvo, 89 N.Y.2d 140, 145 [1996]), and ordered defendant to pay restitution in the amount of $148,747.50, representing the total loss plus a 10% collection surcharge. Inasmuch as defendant did not move to withdraw his plea of guilty before the sentence was imposed on the basis of the amount of restitution, he failed to preserve for appellate review his contention that the lack of a specific amount of restitution in the terms of his plea agreement rendered the plea involuntary (see People v Niedwieski, 100 A.D.3d 1023, 1023 [2d Dept 2012], lv denied 21 N.Y.3d 913 [2013]; see generally People v DeScisciolo, 109 A.D.3d 666, 666 [2d Dept 2013]).

Further, we reject defendant's contention that the court erred in determining the amount of restitution. The court properly "credit[ed] the testimony and documentation presented by the People and [determined] that the loss incurred was established by a preponderance of the evidence" (People v Osborne, 161 A.D.3d 1485, 1486 [3d Dept 2018]), and defendant failed" 'to offer evidence contradicting the People's calculation'" (id.).

We also reject defendant's contention that the court erred in failing to make an inquiry when he raised a complaint about defense counsel. "Even assuming, arguendo, that defendant's complaint[] about defense counsel suggested a serious possibility of good cause for a substitution of counsel requiring a need for further inquiry," we conclude that "the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit" (People v Bethany, 144 A.D.3d 1666, 1669 [4th Dept 2016], lv denied 29 N.Y.3d 996 [2017], cert denied __US__, 138 S.Ct. 1571 [2018]).

The sentence is not unduly harsh or severe. We have considered defendant's remaining contentions, and we conclude that they do not warrant modification or reversal of the judgment.

People v. Eatmon