People v. Jensen

205 A.D.3d 926

166 N.Y.S.3d 579 (Mem)

The PEOPLE, etc., respondent,

v.Christopher JENSEN, appellant.

2020–03878

Ind. No. 19–00709

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 25, 2022

May 18, 2022

Gary E. Eisenberg, New City, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass and Alexander J.H. Ochoa of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered February 26, 2020, convicting him of criminal mischief in the second degree, upon his plea of guilty, and imposing sentence, including a direction that the defendant pay restitution in the sum of $7,630.

ORDERED that the judgment is modified, on the law, by vacating the provision thereof directing the defendant to pay restitution in the sum of $7,630; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for a hearing and a new determination as to the proper amount of restitution and the manner of payment thereof.

The defendant pleaded guilty to criminal mischief in the second degree, admitting, inter alia, that he threw a rock through a window of the complainant's home and damaged property with a value in excess of $1,500. The presentence report indicated that the complainant requested $7,630 in restitution for damages to his home. At sentencing, the only information before the County Court regarding the amount of damages was a contractor's estimate, unsigned by the complainant, indicating that the cost of work to repair the damages would be $7,630. The defendant objected to the amount of restitution requested. As part of the sentence imposed, the court directed the defendant to pay restitution in the sum of $7,630.

The defendant validly waived his right to appeal. The record of the plea proceeding demonstrates that the County Court sufficiently advised the defendant of the nature of the right to appeal, and that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Ayala, 172 A.D.3d 1085, 1086–1087, 100 N.Y.S.3d 334 ; People v. Ferguson, 113 A.D.3d 874, 874, 979 N.Y.S.2d 389 ).

The defendant's claim with respect to the voluntariness of his plea survives his valid waiver of the right to appeal (see People v. Fontanet, 126 A.D.3d 723, 723, 2 N.Y.S.3d 371 ). However, the defendant's contention that his plea of guilty was not made knowingly, voluntarily, and intelligently is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise this issue before the County Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938 ; People v. Ellis, 142 A.D.3d 509, 510, 35 N.Y.S.3d 920 ). Moreover, contrary to the defendant's contention, the narrow exception to the preservation rule does not apply here, as nothing in the defendant's factual recitation cast doubt upon his guilt, negated an essential element of the crime, or called into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Ellis, 142 A.D.3d at 510, 35 N.Y.S.3d 920 ). In any event, the record establishes that the defendant's plea was made knowingly, voluntarily, and intelligently (see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Razzaq, 202 A.D.3d 998, 159 N.Y.S.3d 723 ).

A defendant's waiver of the right to appeal does not preclude appellate review of a challenge to restitution where the amount of restitution was not made part of the plea agreement (see People v. Vazquez, 173 A.D.3d 907, 908, 99 N.Y.S.3d 884 ; People v. Isaacs, 71 A.D.3d 1161, 1161, 898 N.Y.S.2d 226 ). Accordingly, the defendant's contention regarding restitution is not precluded.

" ‘Before a defendant may be directed to pay restitution a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing’ " ( People v. Tippa, 194 A.D.3d 856, 856–857, 143 N.Y.S.3d 904, quoting People v. Morrishill, 127 A.D.3d 993, 994, 6 N.Y.S.3d 632 ; see Penal Law § 60.27[2] ; People v. Denny, 159 A.D.3d 830, 831, 69 N.Y.S.3d 823 ).

Here, the defendant objected to the amount of restitution payable to the complainant, and the record was insufficient to establish the...