Opinion
No. 636 KA 20-01645
09-27-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. NELSON E. FIGUEROA, JR., DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLISON V. MCMAHON OF COUNSEL), FOR DEFENDANT-APPELLANT. KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLISON V. MCMAHON OF COUNSEL), FOR DEFENDANT-APPELLANT.
KEVIN T. FINNELL, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, DELCONTE, AND HANNAH, JJ.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered November 24, 2020. The judgment convicted defendant upon a plea of guilty of predatory sexual assault against a child (two counts), sexual abuse in the first degree, and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating that part of the sentence awarding restitution and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of predatory sexual assault against a child (Penal Law former § 130.96), arising from defendant's repeated sexual abuse of his girlfriend's daughter (victim). Contrary to defendant's contention and the People's incorrect concession (see People v Berrios, 28 N.Y.2d 361, 366-367 [1971]; People v Edmonds, 229 A.D.3d 1275, 1276 [4th Dept 2024]; People v Morrison, 179 A.D.3d 1454, 1455 [4th Dept 2020], lv denied 35 N.Y.3d 972 [2020]), the record establishes that defendant knowingly, voluntarily, and intelligently waived his right to appeal (see Edmonds, 229 A.D.3d at 1276-1277; People v Giles, 219 A.D.3d 1706, 1706-1707 [4th Dept 2023], lv denied 40 N.Y.3d 1039 [2023]; see generally People v Thomas, 34 N.Y.3d 545, 559-564 [2019], cert denied __ U.S. __, 140 S.Ct. 2634 [2020]; People v Lopez, 6 N.Y.3d 248, 256 [2006]). We note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal (see NY Model Colloquies, Waiver of Right to Appeal; see generally Thomas, 34 N.Y.3d at 567; Edmonds, 229 A.D.3d at 1277; Giles, 219 A.D.3d at 1706). Contrary to defendant's assertion, the court did not mischaracterize the appeal waiver as "an absolute bar to the taking of a first-tier direct appeal" (Thomas, 34 N.Y.3d at 558; see Edmonds, 229 A.D.3d at 1277; see also People v Wilson, 217 A.D.3d 1561, 1562 [4th Dept 2023], lv denied 40 N.Y.3d 1000 [2023]; People v Cromie, 187 A.D.3d 1659, 1659 [4th Dept 2020], lv denied 36 N.Y.3d 971 [2020]). Instead, the court followed the model colloquy nearly verbatim, explaining that defendant retained the right to take an appeal, but that his conviction and sentence would, "as a practical matter," "be final" because he was giving up the right to appellate review of "most claims of error," including claims regarding the severity of the sentence but excluding the "limited claims" that survive an appeal waiver, such as those relating to the voluntariness of the plea, the validity of the appeal waiver, and the legality of the sentence (see Thomas, 34 N.Y.3d at 567; Edmonds, 229 A.D.3d at 1277; People v Jackson, 198 A.D.3d 1317, 1318 [4th Dept 2021], lv denied 37 N.Y.3d 1096 [2021]). Contrary to defendant's further assertion, the record establishes that defense counsel had already "take[n] a few minutes" to discuss with defendant the appeal waiver required to obtain the court's sentencing commitment; the record also establishes that, upon an inquiry by the court consistent with the model colloquy, defendant confirmed that he had discussed waiving his right to appeal with defense counsel (see NY Model Colloquies, Waiver of Right to Appeal; see generally Thomas, 34 N.Y.3d at 560). Any deficiency by the court in ascertaining on the record defendant's understanding of the contents of the written waiver (see Thomas, 34 N.Y.3d at 563, 566; People v Bradshaw, 18 N.Y.3d 257, 266-267 [2011]; People v Callahan, 80 N.Y.2d 273, 283 [1992]) is of no moment where, as here, the oral waiver was adequate (see Lopez, 6 N.Y.3d at 257; People v Witherow, 203 A.D.3d 1595, 1595-1596 [4th Dept 2022]; People v Thomas, 178 A.D.3d 1461, 1461 [4th Dept 2019], lv denied 35 N.Y.3d 945 [2020]; People v Smith, 164 A.D.3d 1621, 1621 [4th Dept 2018], lv denied 32 N.Y.3d 1177 [2019]).
In further seeking to invalidate the appeal waiver, defendant encourages us to apply the rule created by the Second Department that where, as here, the inclusion of the appeal waiver as part of a plea agreement is demanded by the court rather than the People, the appeal waiver is unenforceable if the court fails to sufficiently articulate the reasons for its demand (see People v Sutton, 184 A.D.3d 236, 244-245 [2d Dept 2020], lv denied 35 N.Y.3d 1070 [2020]). We have "not adopted the Second Department's requirement that the court articulate a reason for requiring a[n appeal] waiver in a... plea proceeding" (People v Dilworth, 189 A.D.3d 636, 637 [1st Dept 2020], lv denied 36 N.Y.3d 1096 [2021], reconsideration denied 37 N.Y.3d 964 [2021]). In any event, the court here, unlike the court in Sutton, included the appeal waiver as a condition of the plea offer prior to accepting defendant's plea and articulated on the record that the appeal waiver was required in order for defendant to secure the benefit of the sentencing limitation promised by the court (see id.; see also People v Guerrero, 194 A.D.3d 1258, 1259 [3d Dept 2021], lv denied 37 N.Y.3d 992 [2021]).
Defendant's valid waiver of the right to appeal precludes our review of his challenge to the severity of the incarceration component of his sentence (see Lopez, 6 N.Y.3d at 255-256; Witherow, 203 A.D.3d at 1596).
Next, defendant challenges the court's imposition of restitution on the ground that the girlfriend's request therefor was not based on any actual out-of-pocket loss that qualifies as a valid basis for restitution. We note at the outset that defendant's challenge to the restitution component of his sentence survives his valid waiver of the right to appeal inasmuch as restitution was not included in the terms of the plea agreement (see Witherow, 203 A.D.3d at 1596; People v McBean, 192 A.D.3d 1706, 1707 [4th Dept 2021], lv denied 37 N.Y.3d 958 [2021]; People v Rodriguez, 173 A.D.3d 1840, 1841 [4th Dept 2019], lv denied 34 N.Y.3d 953 [2019]). We further note that defendant preserved his challenge for appellate review by objecting to the imposition of restitution on the same ground he now advances (see People v Richardson, 173 A.D.3d 1859, 1860-1861 [4th Dept 2019], lv denied 34 N.Y.3d 953 [2019], reconsideration denied 34 N.Y.3d 1081 [2019]).
The girlfriend requested restitution for the unpaid balance of rent for the house she had shared with defendant and for a bill for garbage and recycling collection that was not yet due. The People argued that the girlfriend was entitled to restitution for those expenses because, according to the girlfriend's statements, defendant's offenses caused the victim emotional and psychological harm and caused the girlfriend stress that resulted in serious health issues and several hospitalizations, all of which rendered her unable to work, thereby ultimately resulting in financial hardship and her inability to pay the claimed household expenses. The court, over defense counsel's objection that the claimed expenses were not directly caused by defendant's offenses, imposed the requested restitution. That was error.
"Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to 'make restitution of the fruits of [their] offense or reparation for the actual out-of-pocket loss caused thereby'" (People v Horne, 97 N.Y.2d 404, 410 [2002]; see People v Connolly, 27 N.Y.3d 355, 359 [2016]; Witherow, 203 A.D.3d at 1596). Restitution and reparation may be required for expenses that "were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime" (People v Cruz, 81 N.Y.2d 996, 998 [1993]; see People v Johnson, 125 A.D.3d 1419, 1421 [4th Dept 2015], lv denied 26 N.Y.3d 1089 [2015]). Conversely, the statute "does not impose a duty on the defendant to pay for the costs associated [ ]with... expenses [that] are not directly caused by the defendant's crime" (People v Case, 214 A.D.3d 1379, 1381 [4th Dept 2023]).
Here, we conclude that the claimed expenses do not constitute "actual out-of-pocket loss caused" by defendant's offenses (Penal Law § 60.27 [1]) inasmuch as the girlfriend's unpaid rent and utility bill are costs "not directly caused by... defendant's crime[s]" (Case, 214 A.D.3d at 1381). Contrary to the People's assertion, the girlfriend's request did not constitute a claim for lost wages directly caused by defendant's offenses (cf. People v Robinson, 133 A.D.3d 1043, 1044 [3d Dept 2015], lv denied 27 N.Y.3d 1154 [2016]). We therefore modify the judgment accordingly.