Opinion
11-20-2015
The PEOPLE of the State of New York, Respondent, v. Richard J. SHAW, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of rape in the third degree (Penal Law § 130.25[2] ). Initially, we agree with defendant that his waiver of the right to appeal was invalid because “ ‘the minimal inquiry made by County Court was insufficient to establish that the court engage[d] defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Carrasquillo, 130 A.D.3d 1498, 1498, 11 N.Y.S.3d 499; see People v. Harris, 121 A.D.3d 1423, 1424, 995 N.Y.S.2d 410, lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969). Although defendant's challenge to the voluntariness of his plea would have survived even a valid waiver of the right to appeal (see People v. Adams, 57 A.D.3d 1385, 1385, 871 N.Y.S.2d 567, lv. denied 12 N.Y.3d 780, 879 N.Y.S.2d 57, 906 N.E.2d 1091), “defendant did not move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve his [challenge] for our review” (People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317, lv. denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931). Defendant also failed to preserve for our review his challenge to the amount of restitution ordered by the court inasmuch as he did not object to the amount of restitution (see People v. Spossey, 107 A.D.3d 1420, 1420, 966 N.Y.S.2d 640, lv. denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643), or to the fact that the court relied exclusively on the presentence report in determining the amount of restitution (see People v. Cooke, 21 A.D.3d 1339, 1339, 804 N.Y.S.2d 516).
We reject defendant's contention that he was deprived of effective assistance of counsel. Defendant received an advantageous plea, and “nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; see generally People v. Pitcher, 126 A.D.3d 1471, 1473, 6 N.Y.S.3d 352, lv. denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104).
Finally, we reject defendant's contention that the sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SCUDDER, P.J., SMITH, CARNI, LINDLEY, and VALENTINO, JJ., concur.