Opinion
110510
04-23-2020
The PEOPLE of the State of New York, Respondent, v. Justin P. LOVE, Appellant.
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Jamie Biondolillo of counsel), for respondent.
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Jamie Biondolillo of counsel), for respondent.
Before: Egan Jr., J.P., Mulvey, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with two counts of burglary in the third degree with the understanding that he would be placed on interim probation for one year in order to earn a sentence of "straight probation." The plea agreement also required defendant to waive his right to appeal. Following his guilty plea, County Court placed defendant on interim probation subject to various terms and conditions, including that he make monthly restitution payments. When defendant returned to County Court at the expiration of his interim probation, the court sentenced defendant to five years of probation – notwithstanding defendant's failure to make all of the required restitution payments.
Defendant subsequently was charged with violating his probation in numerous respects. After waiving a violation hearing, defendant admitted to violating numerous terms of his probation with the understanding that he would be sentenced to concurrent prison terms of 1 to 5 years. County Court imposed the agreed-upon sentence and ordered that defendant be enrolled in the shock incarceration program. This appeal ensued.
We affirm. Defendant initially contends that his waiver of the right to appeal is invalid. The challenged waiver arose in the context of defendant's initial guilty plea; the waiver of appeal did not encompass any potential probation violations and/or the disposition thereof (compare People v. Marable, 164 A.D.3d 1542, 1543, 83 N.Y.S.3d 744 [2018], lv . denied 32 N.Y.3d 1126, 93 N.Y.S.3d 264, 117 N.E.3d 823 [2018] ), nor did defendant separately waive his right to appeal in the context of his admissions to the probation violations (compare People v. Huntley, 177 A.D.3d 1034, 1035, 109 N.Y.S.3d 919 [2019] ; People v. Bailey, 157 A.D.3d 1133, 1134, 69 N.Y.S.3d 440 [2018], lv . denied 31 N.Y.3d 981, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018] ). Accordingly, even assuming – without deciding – that the subject appeal waiver is valid, it does not preclude defendant's challenge to the severity of the resentence imposed following the revocation of his probation (see People v. Morton, 173 A.D.3d 1445, 1446, 103 N.Y.S.3d 683 [2019], lv . denied 34 N.Y.3d 935, 109 N.Y.S.3d 757, 133 N.E.3d 464 [2019] ; People v. Klemko, 150 A.D.3d 1487, 1488, 55 N.Y.S.3d 491 [2017] ). That said, we discern no extraordinary circumstances or abuse of discretion warranting a reduction of the agreed-upon resentence in the interest of justice (see e.g. People v. Montpetit, 170 A.D.3d 1341, 1342, 94 N.Y.S.3d 463 [2019] ; People v. Regan, 162 A.D.3d 1414, 1415, 79 N.Y.S.3d 752 [2018] ).
Egan Jr., J.P., Mulvey, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.