People v Hall

People v Hall 2016 NY Slip Op 00546 Decided on January 28, 2016 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 28, 2016
106854

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

MATTHEW J. HALL, Appellant.

Calendar Date: December 15, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

Matthew J. Hall, Malone, appellant pro se.

Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. of counsel), for respondent.

Egan Jr., J.

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Essex County (Meyer, J.), rendered May 16, 2014, convicting defendant on his plea of guilty of the crime of grand larceny in the second degree, and (2) by permission, from an order of said court, entered December 24, 2014, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

Pursuant to a written plea agreement, defendant waived indictment and entered a guilty plea to grand larceny in the second degree as charged in a superior court information. The charge stemmed from defendant's theft of cash from his employer and two of its customers between 2006 and 2012. Under the terms

of the plea agreement, defendant waived his right to appeal and agreed to pay restitution in the amount of $143,895.75; sentencing was left to the discretion of County Court. The court thereafter imposed a prison sentence of 5 to 15 years and ordered that defendant pay the agreed-upon restitution, with a surcharge. Defendant's subsequent motion to set aside the sentence pursuant to CPL 440.20 was denied, without a hearing. Defendant now appeals from both the judgment of conviction and, by permission, from the order denying his CPL 440.20 motion.

We affirm. Defendant's claim that the sentence imposed is harsh and excessive is precluded by his unchallenged oral and written waiver of appeal (see People v Smalls, 128 AD3d 1281, 1282 [2015]). With regard to the amount of restitution imposed, defendant expressly [*2]consented to pay the specified amount as part of the plea agreement and waived his right to a hearing; hence, any challenge to the amount ordered is both precluded by his appeal waiver and unpreserved for our review (see People v Campo, 125 AD3d 1058, 1059 [2015], lv denied 25 NY3d 1070 [2015]).

Defendant further argues that his motion pursuant to CPL 440.20 to set aside his sentence should have been granted because County Court imposed an impermissible amount of restitution without permitting him to withdraw his plea and, further, imposed a surcharge that was not included in the terms of the plea agreement [FN1]. With regard to the $15,000 statutory cap on restitution, it applies "[e]xcept upon consent of the defendant" (Penal Law § 60.27 [5] [a]). Here, as part of the plea agreement, defendant expressly agreed to the pay restitution and consented to the amount ordered after being advised of the cap and, thus, the restitution order did not violate Penal Law § 60.27 (5) (a). We similarly reject defendant's contention that the surcharge imposed on the restitution amount was illegal and violated the plea agreement, as a surcharge is mandatary under Penal Law § 60.27 (8). Further, given the affidavit submitted by the Acting Director of the Essex County Probation Department regarding the additional costs associated with administering this restitution order, a 10% surcharge was authorized by Penal Law § 60.27 (8) (see People v Pratt, 77 AD3d 1337, 1337-1338 [2010], lv denied 15 NY3d 955 [2010]; compare People v Rawdon, 296 AD2d 599, 600 [2002], lv denied 98 NY2d 771 [2002]). Finally, contrary to defendant's claim, it is "not require[d] that a defendant be advised, prior to his or her plea, that the statutory surcharge is a part of the sentence" (People v Passino, 104 AD3d 1060, 1061 [2013], lv denied 22 NY3d 1157 [2014] [internal quotation marks and citations omitted]). Accordingly, defendant's motion to set aside the sentence was properly denied without a hearing (see CPL 440.30 [4]).

McCarthy, J.P., Lynch and Clark, JJ., concur.

ORDERED that the judgment and order are affirmed.

Footnotes

Footnote 1: Defendant did not move to withdraw his guilty plea.