Opinion
107231.
02-11-2016
The PEOPLE of the State of New York, Respondent, v. Anthony E. BRASMEISTER, Appellant.
Mark Diamond, Albany, for appellant. James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.
Mark Diamond, Albany, for appellant.
James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.
Opinion
ROSE, J.
Appeal from a judgment of the County Court of Montgomery County (Hoye, J.), rendered July 11, 2013, convicting defendant upon his plea of guilty of the crime of murder in the second degree (two counts).
Defendant pleaded guilty to two counts of murder in the second degree and his plea included a waiver of the right to appeal. County Court thereafter sentenced him to two concurrent prison terms of 25 years to life. County Court further ordered defendant to pay restitution in the amount of $3,048.20. Defendant now appeals.
Contrary to defendant's contention, his responses during the plea allocution concerning his appeal waiver and his counseled, written waiver executed in open court, which adequately advised him that the right to appeal is separate and distinct from the other rights forfeited by a guilty plea, demonstrate that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Merrill, 123 A.D.3d 1339, 1339, 999 N.Y.S.2d 265 2015, lv. denied 26 N.Y.3d 970, 18 N.Y.S.3d 606, 40 N.E.3d 584 2015; People v. Frasier, 105 A.D.3d 1079, 1080, 962 N.Y.S.2d 787 2013, lv. denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 2014; People v. White, 96 A.D.3d 1299, 1299–1300, 946 N.Y.S.2d 717 2012 ). The valid waiver precludes review of his challenge to the sentence as harsh and excessive (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 2006; People v. Galietta, 75 A.D.3d 753, 754, 904 N.Y.S.2d 804 2010; People v. Schwickrath, 23 A.D.3d 707, 708, 803 N.Y.S.2d 307 2005 ).
As to defendant's challenge to the imposition of restitution, this issue survives his appeal waiver (see People v. Nugent, 31 A.D.3d 976, 978, 818 N.Y.S.2d 362 2006, lv. denied 8 N.Y.3d 925, 834 N.Y.S.2d 516, 866 N.E.2d 462 2007; People v. Branch–El, 12 A.D.3d 785, 786, 784 N.Y.S.2d 225 2004, lv. denied 4 N.Y.3d 761, 792 N.Y.S.2d 5, 825 N.E.2d 137 2005 ). Inasmuch as the record fails to establish that payment of restitution was part of defendant's plea agreement, we must agree that County Court erred in imposing the enhanced sentence without giving defendant an opportunity to withdraw his plea (see People v. Strong, 124 A.D.3d 992, 992–993, 1 N.Y.S.3d 532 2015; People v. Culcleasure, 75 A.D.3d 832, 832, 905 N.Y.S.2d 682 2010; People v. Branch–El, 12 A.D.3d at 786, 784 N.Y.S.2d 225). Accordingly, defendant's sentence must be vacated and the matter remitted to County Court to either impose the agreed-upon sentence or give defendant the option of withdrawing his plea before imposing the enhanced sentence (see People v. Strong, 124 A.D.3d at 993, 1 N.Y.S.3d 532; People v. Hulett, 117 A.D.3d 1279, 1279, 985 N.Y.S.2d 923 2014; People v. Galietta, 75 A.D.3d at 754–755, 904 N.Y.S.2d 804).
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Montgomery County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
McCARTHY, J.P., GARRY and DEVINE, JJ., concur.