Opinion
2018-944 W CR
12-02-2021
The PEOPLE of the State of New York, Respondent, v. SELENA S. (Anonymous), Appellant.
Scott M. Bishop, for appellant. Westchester County District Attorney (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.
Scott M. Bishop, for appellant.
Westchester County District Attorney (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.
PRESENT: TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ.
ORDERED that the judgment adjudicating defendant a youthful offender is affirmed.
Defendant was charged in a felony complaint with assault in the second degree ( Penal Law § 120.05 [2] ). Finding that there was a legal and factual basis for a reduction of the felony charge to the misdemeanor charge of assault in the third degree ( Penal Law § 120.00 [2] ), the City Court made notations to the face of the accusatory instrument reflecting that the felony charge was reduced and the accusatory instrument converted (see CPL 180.50 [3] [a] [iii] ). Defense counsel, on behalf of defendant, waived arraignment on the converted accusatory instrument (see People v Connor , 63 NY2d 11 [1984] ) and defendant pleaded guilty. The plea was conditioned on defendant executing a misdemeanor conviction waiver of rights form and an appeal waiver of rights form. At a subsequent proceeding, the court sentenced defendant to a one-year conditional discharge and the payment of restitution in the amount of $6,489.
It is well settled that a waiver of the right to appeal is not an absolute bar to the taking of a first-tier direct appeal and that such a waiver is enforceable only so long as the totality of the circumstances reveals that the defendant understood the nature and consequences of the appellate rights being waived (see People v Bisono , 36 NY3d 1013, 1017-1018 [2020] ; People v Thomas , 34 NY3d 545, 558-559, 565-566 [2019] ). Here, the record demonstrates that, despite the fact that defendant had executed a written appeal waiver, the City Court failed to fulfill its responsibility to ensure defendant's full appreciation of the consequence and understanding of the terms and conditions of the plea and of the appeal waiver (see Thomas , 34 NY3d at 560 ), particularly since defendant was a minor and a novice to the criminal justice system. Consequently, appellate review of defendant's claims are not precluded by that waiver.
For the first time on appeal, defendant claims that she did not waive prosecution by information and she challenges the facial sufficiency of the accusatory instrument contending that it did not allege the factual basis for the complainant officer's direct knowledge of the incident and the resulting injury. This hearsay challenge (see CPL 100.40 [1] [c] ), however, was waived by defendant's guilty plea (see People v Keizer , 100 NY2d 114, 122 [2003] ; People v Casey , 95 NY2d 354, 362 [2000] ). In any event, the evidentiary facts alleged in the accusatory instrument were based upon the complainant police officer's direct knowledge and the accusatory instrument sufficiently pleaded all of the requisite elements to sustain a charge of assault in the third degree, i.e., that defendant had recklessly caused physical injury to another person by intentionally striking that person in the face with an aluminum pipe, causing him to sustain physical injuries consisting of losing a piece of his left ear, which injury required several stitches, bruising to his neck, and multiple lacerations to his back, as well as substantial pain (see Penal Law § 120.00 [2] ). Additionally, the record demonstrates that defendant did execute a misdemeanor conviction waiver of rights form, the contents of which she acknowledged had been explained to her, wherein she waived the filing of an information (see People v White , 51 Misc 3d 137[A], 2016 NY Slip Op 50574[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Ackridge , 16 Misc 3d 127[A], 2006 NY Slip Op 52596[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]; cf. People v Hatton , 26 NY3d 364, 368 [2015] [finding that the consequence for failing to secure a valid waiver of a defendant's right not to proceed on a misdemeanor complaint is that the facial sufficiency of the accusatory instrument will be assessed based on the standard applicable to an information]).
Defendant's challenge to the restitution component of the sentence is unpreserved for appellate review due to her failure to object to the imposition of restitution, contest the amount thereof, request a hearing at the time of sentencing or move to withdraw her plea on that ground (see People v Vazquez , 173 AD3d 907 [2019] ; People v Jerome , 110 AD3d 739 [2013] ; People v White , 61 Misc 3d 149[A], 2018 NY Slip Op 51752[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Farmer , 50 Misc 3d 141[A], 2016 NY Slip Op 50199[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). In any event, the record demonstrates that defendant was notified of the maximum sentence she faced and that restitution, which was within the ambit of the promised sentence, had always been a part of the plea agreement.
Accordingly, the judgment adjudicating defendant a youthful offender is affirmed.
RUDERMAN, P.J., DRISCOLL and VOUTSINAS, JJ., concur.