Opinion
671 KA 17–00975
06-14-2019
The PEOPLE of the State of New York, Respondent, v. Jonathon J. LAMAGNA, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating that part of the sentence ordering restitution and as modified the judgment is affirmed and the matter is remitted to Genesee County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his plea of guilty of assault in the second degree ( Penal Law § 120.05[1] ) and coercion in the second degree (§ 135.60[1] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. The record establishes that County Court engaged defendant "in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] [internal quotation marks omitted] ), and " ‘did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea’ " ( People v. Mills, 151 A.D.3d 1744, 1745, 57 N.Y.S.3d 298 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; see People v. Tabb, 81 A.D.3d 1322, 1322, 916 N.Y.S.2d 567 [4th Dept. 2011], lv denied 16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ). We reject defendant's contention that the waiver is invalid because the court omitted certain rights when explaining the rights that are not subject to the waiver of the right to appeal. It is well settled that a "court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Furthermore, we have frequently stated that "[a]ny nonwaivable issues purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ " ( People v. Neal, 56 A.D.3d 1211, 1211, 867 N.Y.S.2d 612 [4th Dept. 2008], lv. denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ; see People v. Weatherbee, 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv. denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] ), and defendant does not contend that any of the unstated nonwaivable rights apply to this case. We have considered defendant's further contentions concerning the waiver of the right to appeal and conclude that they lack merit.
The valid waiver of the right to appeal with respect to both the conviction and sentence forecloses defendant's challenge to the severity of his sentence (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ), and to the "court's discretionary decision to deny youthful offender status" ( People v. Pacherille, 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; see People v. King, 151 A.D.3d 1651, 1652, 56 N.Y.S.3d 398 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ).
Defendant's valid waiver of the right to appeal forecloses any challenge to the amount of restitution (see People v. Schmiege, 172 A.D.3d 1897, 1897–98, 97 N.Y.S.3d 903, 904, 2019 N.Y. Slip Op. 03489, 2019 WL 1968132, *1 [4th Dept. 2019] ), and defendant failed to preserve any challenge to that amount for our review. Nevertheless, as the People correctly concede, there is merit to defendant's contention that the restitution component of his sentence must be vacated because the court failed to direct the manner of payment, in violation of CPL 420.10(1). Defendant's contention is a challenge to the legality of the sentence and thus survives his waiver of the right to appeal (see People v. Boatman, 110 A.D.3d 1463, 1463–1464, 972 N.Y.S.2d 780 [4th Dept. 2013], lv denied 22 N.Y.3d 1039, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ; see also People v. Stachnik, 101 A.D.3d 1590, 1592, 956 N.Y.S.2d 777 [4th Dept. 2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ) and, based upon "the essential nature of the right to be sentenced as provided by law," we review that contention notwithstanding defendant's failure to raise it at sentencing ( Boatman, 110 A.D.3d at 1464, 972 N.Y.S.2d 780 [internal quotation marks omitted] ). Although we affirm the amount of restitution ordered by the court, we modify the judgment by vacating that part of the sentence ordering restitution (see People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563 [1982] ; People v. Watkins, 155 A.D.2d 997, 998, 549 N.Y.S.2d 625 [4th Dept. 1989] ), and we remit the matter to County Court to fix the manner in which the restitution is to be paid.