Opinion
1132 KA 17–00976
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Steven CLARK, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE WILD OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE WILD OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of burglary in the second degree ( Penal Law § 140.25[2] ). As the People correctly concede, defendant did not validly waive his right to appeal because County Court "conflated the appeal waiver with the rights automatically waived by the guilty plea ... and thus the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Walker , 171 A.D.3d 1501, 1502, 97 N.Y.S.3d 551 [4th Dept. 2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 49, 129 N.E.3d 369 [2019] [internal quotation marks omitted]; see generally People v. Martinez, 166 A.D.3d 1558, 1558, 88 N.Y.S.3d 732 [4th Dept. 2018] ).
Defendant's challenges to the restitution order are unpreserved for appellate review (see People v. Briggs, 169 A.D.3d 1369, 1369–1370, 91 N.Y.S.3d 648 [4th Dept. 2019], lv denied 33 N.Y.3d 974, 101 N.Y.S.3d 264, 124 N.E.3d 753 [2019] ; People v. Sapetko, 158 A.D.3d 1315, 1315–1316, 68 N.Y.S.3d 353 [4th Dept. 2018], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ; People v. Jones, 108 A.D.3d 1206, 1207, 969 N.Y.S.2d 364 [4th Dept. 2013], lv denied 22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171 [2013] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see Jones, 108 A.D.3d at 1207, 969 N.Y.S.2d 364 ). Defendant's contention that defense counsel was ineffective for agreeing to the restitution amount and not raising an objection thereto " ‘cannot be resolved without reference to matter outside the record’ " and must therefore be raised in a motion pursuant to CPL article 440 ( Briggs, 169 A.D.3d at 1370, 91 N.Y.S.3d 648 ).
Finally, we conclude that the sentence is not unduly harsh or severe.