Opinion
1166 KA 16–01372
11-09-2018
The PEOPLE of the State of New York, Respondent, v. David SCHEIFLA, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the total amount of restitution to $897.38, and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of 10 counts of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ) and 10 counts of petit larceny (§ 155.25). Contrary to defendant's contention, we conclude that "the waiver of the right to appeal was not rendered invalid based on [County Court's] failure to require defendant to articulate the waiver in his own words" ( People v. Alsaifullah, 162 A.D.3d 1483, 1484, 77 N.Y.S.3d 811 [4th Dept. 2018] [internal quotation marks omitted]; see People v. Ripley, 94 A.D.3d 1554, 1554–1555, 942 N.Y.S.2d 919 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ). Here, "[t]he plea colloquy and the written waiver of the right to appeal signed [and acknowledged in court] by defendant demonstrate that [he] knowingly, intelligently and voluntarily waived the right to appeal, including the right to appeal the severity of the sentence" ( People v. Hill, 162 A.D.3d 1762, 1762, 76 N.Y.S.3d 447 [4th Dept. 2018], lv denied 32N.Y.3d 1004, ––– N.Y.S.2d ––––, ––– N.E.2d ––––, 2018 WL 4941123 [Sept. 14, 2018] ). Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ).
Defendant contends, and the People correctly concede, that the amount of restitution ordered by the court violates Penal Law § 60.27(1) and (4)(a). We note that, inasmuch as defendant's contention concerns the legality of the sentence, it is not encompassed by the waiver of the right to appeal (see People v. Johnson, 125 A.D.3d 1419, 1421, 3 N.Y.S.3d 225 [4th Dept. 2015], lv denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ; 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 generally People v. Suits, 158 A.D.3d 949, 950–952, 71 N.Y.S.3d 664 [3d Dept. 2018] ). We therefore modify the judgment by reducing the total amount of restitution from $942.38 to $897.38.