Opinion
106167.
05-05-2016
The PEOPLE of the State of New York, Respondent, v. Geoffrey S. GOLDMAN, Appellant.
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Margaret A. Cieprisz of counsel), for respondent.
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Margaret A. Cieprisz of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, ROSE, LYNCH and AARONS, JJ.
Opinion
PETERS, P.J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 5, 2011, convicting defendant upon his plea of guilty of the crimes of grand larceny in the second degree and scheme to defraud in the first degree.
In satisfaction of a superior court information, defendant waived indictment and pleaded guilty to grand larceny in the second degree and scheme to defraud in the first degree. Defendant also waived his right to appeal the conviction and sentence, except with regard to the amount of restitution imposed. County Court, in accordance with the plea agreement, imposed an aggregate prison term of 4 to 12 years. The court also ordered restitution in the amount of $5,687,944.06. This appeal ensued.
Contrary to defendant's contention, we find that he knowingly, voluntarily and intelligently waived his right to appeal. During the plea colloquy, defendant confirmed his understanding that the right to appeal is separate and distinct from those rights automatically given up by the guilty plea, and he waived his right to appeal both the conviction and sentence imposed with a limited exception allowing him to appeal solely the amount of restitution. Defendant's appeal waiver is, therefore, valid (see People v. Phipps, 127 A.D.3d 1500, 1501, 7 N.Y.S.3d 697 [2015], lv.
denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ; People v. Morey, 110 A.D.3d 1378, 1378–1379, 975 N.Y.S.2d 201 [2013], lv. denied 23 N.Y.3d 965, 988 N.Y.S.2d 572, 11 N.E.3d 722 [2014] ). As such, defendant's challenges to the sufficiency of the plea allocution and the sentence as harsh and excessive are precluded (see People v. Jackson, 128 A.D.3d 1279, 1280, 9 N.Y.S.3d 739 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ; People v. Bryant, 128 A.D.3d 1223, 1224–1225, 10 N.Y.S.3d 341 [2015], lv. denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ).
While defendant's challenge to the voluntariness of his plea survives his waiver of the right to appeal, it is nevertheless unpreserved for our review as the record does not reflect that defendant made a postallocution motion in this regard (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ; People v. Toback, 125 A.D.3d 1060, 1061, 3 N.Y.S.3d 444 [2015], lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ). Further, the narrow exception to the preservation requirement is not implicated here as defendant made no statements during the plea colloquy that cast doubt on his guilt (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Garry, 133 A.D.3d 1039, 1039–1040, 19 N.Y.S.3d 192 [2015] ; People v. Lyman, 119 A.D.3d 968, 970, 988 N.Y.S.2d 717 [2014] ; People v. Taylor, 89 A.D.3d 1143, 1144, 931 N.Y.S.2d 918 [2011] ).
Although defendant's assertion that he was denied the effective assistance of counsel survives his appeal waiver to the extent that it implicates the voluntariness of his plea (see People v. Toback, 125 A.D.3d at 1061, 3 N.Y.S.3d 444 ), it is also not preserved for our review given the absence of a postallocution motion (see People v. Bethea, 133 A.D.3d 1033, 1034, 19 N.Y.S.3d 191 [2015] ; People v. Jimenez, 96 A.D.3d 1109, 1110, 945 N.Y.S.2d 583 [2012] ). Furthermore, defendant's allegations regarding what defense counsel advised and promised regarding the consequences of the plea, as well as the adequacy of counsel's preparation and representation, concern matters outside the record and are more properly the subject of a postconviction motion pursuant to CPL article 440 (see People v. Garry, 133 A.D.3d at 1040, 19 N.Y.S.3d 192 ; People v. Clapper, 133 A.D.3d 1037, 1038, 20 N.Y.S.3d 452 [2015] ). Finally, insofar as defendant contends that he was denied due process by the failure of County Court to hold a restitution hearing, the record does not reflect that any hearing was ever requested. Furthermore, County Court found, upon a review of the documentation filed, that no restitution hearing was required and ordered an amount of restitution to be paid by defendant based upon the detailed restitution figures submitted to the court. At sentencing, County Court acknowledged defendant's disagreement with the methodology used by the People to calculate the amount of restitution, but given defendant's failure to request a restitution hearing or object to the court's determination that a hearing was unnecessary, defendant's argument that County Court should have held a restitution hearing is not preserved (see People v. Kim, 91 N.Y.2d 407, 410, 671 N.Y.S.2d 420, 694 N.E.2d 421 [1998] ; People v. Sparbanie, 110 A.D.3d 1119, 1120, 972 N.Y.S.2d 364 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ). In any event, were we to consider the issue, we would find that the documentation submitted by the People—which included certain adjustments made in accordance with objections filed by defendant prior to sentencing—provided sufficient evidence to support the amount of restitution imposed. Accordingly, in the absence of a request by defendant for a restitution hearing, County Court did not err in its determination that no hearing was necessary (see Penal Law § 60.27[2] ).
ORDERED that the judgment is affirmed.
LAHTINEN, ROSE, LYNCH and AARONS, JJ., concur.