Opinion
1173 KA 19-02152
03-26-2021
The PEOPLE of the State of New York, Respondent, v. Clifton A. MCBEAN, Defendant-Appellant.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
CAITLIN M. CONNELLY, BUFFALO, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating that part of the sentence ordering restitution and by amending the order of protection to expire on May 22, 2033, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the first degree ( Penal Law §§ 110.00, 140.30 [2] ). Contrary to defendant's contention, the waiver of the right to appeal is valid. "[A]ll the relevant circumstances reveal a knowing and voluntary waiver" ( People v. Thomas , 34 N.Y.3d 545, 563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ). Defendant contends that the waiver of the right to appeal is invalid because he did not have an opportunity to discuss it with defense counsel. Defendant has waived that particular contention, however, inasmuch as County Court afforded defendant an opportunity to discuss the waiver of the right to appeal with defense counsel, but defendant declined that opportunity (see generally People v. Forshey , 298 A.D.2d 962, 963, 748 N.Y.S.2d 295 [4th Dept. 2002], lv denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83 [2002], reconsideration denied 100 N.Y.2d 561, 763 N.Y.S.2d 818, 795 N.E.2d 44 [2003] ). Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence and also "includes waiver of the right to invoke [this Court's] interest-of-justice jurisdiction to reduce the sentence" ( People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Vickers , 186 A.D.3d 1070, 1071, 127 N.Y.S.3d 361 [4th Dept. 2020], lv denied 36 N.Y.3d 977, 138 N.Y.S.3d 475, 162 N.E.3d 704 [2020] ).
Defendant's contention regarding the restitution component of his sentence survives his valid waiver of the right to appeal (see People v. Rodriguez , 173 A.D.3d 1840, 1841, 104 N.Y.S.3d 469 [4th Dept. 2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 627, 134 N.E.3d 626 [2019] ; People v. Thomas , 71 A.D.3d 1231, 1232, 896 N.Y.S.2d 264 [3d Dept. 2010], lv denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ). The People correctly concede that the court erred in ordering restitution to a person who was not a "victim of the offense" ( Penal Law § 60.27 [4] [b] ), and we therefore modify the judgment by vacating that part of the sentence ordering restitution (see People v. Meyers , 182 A.D.3d 1037, 1042, 123 N.Y.S.3d 342 [4th Dept. 2020], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 46, 149 N.E.3d 884 [2020] ).
Finally, defendant's contention that the court erred in calculating the expiration date of the order of protection also survives his waiver of the right to appeal (see People v. Lopez , 151 A.D.3d 1649, 1650, 56 N.Y.S.3d 397 [4th Dept. 2017], lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ) and, although defendant failed to preserve that contention for our review, we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ; Lopez , 151 A.D.3d at 1650, 56 N.Y.S.3d 397 ; People v. Richardson , 143 A.D.3d 1252, 1255, 38 N.Y.S.3d 674 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ). Here, the expiration date of the maximum term of defendant's determinate sentence of imprisonment is May 22, 2025. Pursuant to CPL 530.13 (4) (A) (ii), the duration of the order of protection may not exceed, as it does here, eight years from that date. We therefore further modify the judgment by amending the order of protection to expire on May 22, 2033 (see People v. Griswold , 186 A.D.3d 1104, 1105, 127 N.Y.S.3d 374 [4th Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 520, 158 N.E.3d 537 [2020] ; People v. Chattley , 49 A.D.3d 1307, 1307, 852 N.Y.S.2d 861 [4th Dept. 2008], lv denied 10 N.Y.3d 933, 862 N.Y.S.2d 339, 892 N.E.2d 405 [2008] ).