People v. GoldmanPeople v. Goldman
In satisfaction of a superior court information, defendant waived indictment and pleaded guilty to grand larceny in the second degree and scheme to defraud in the first degree. Defendant also waived his right to appeal the conviction and sentence, except with regard to the amount of restitution imposed. County Court, in accordance with the plea agreement, imposed an aggregate prison term of 4 to 12 years. The court also ordered restitution in the amount of $5,687,944.06. This appeal ensued.
Contrary to defendant‘s contention, we find that he knowingly, voluntarily and intelligently waived his right to appeal. During the plea colloquy, defendant confirmed his understanding that the right to appeal is separate and distinct from those rights automatically given up by the guilty plea, and he waived his right to appeal both the conviction and sentence imposed with a limited exception allowing him to appeal solely the amount of restitution. Defendant‘s appeal waiver is, therefore, valid (see People v Phipps, 127 AD3d 1500, 1501 [2015], lv
While defendant‘s challenge to the voluntariness of his plea survives his waiver of the right to appeal, it is nevertheless unpreserved for our review as the record does not reflect that defendant made a postallocution motion in this regard (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015]). Further, the narrow exception to the preservation requirement is not implicated here as defendant made no statements during the plea colloquy that cast doubt on his guilt (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Garry, 133 AD3d 1039, 1039-1040 [2015]; People v Lyman, 119 AD3d 968, 970 [2014]; People v Taylor, 89 AD3d 1143, 1144 [2011]).
Although defendant‘s assertion that he was denied the effective assistance of counsel survives his appeal waiver to the extent that it implicates the voluntariness of his plea (see People v Toback, 125 AD3d at 1061), it is also not preserved for our review given the absence of a postallocution motion (see People v Bethea, 133 AD3d 1033, 1034 [2015]; People v Jimenez, 96 AD3d 1109, 1110 [2012]). Furthermore, defendant‘s allegations regarding what defense counsel advised and promised regarding the consequences of the plea, as well as the adequacy of counsel‘s preparation and representation, concern matters outside the record and are more properly the subject of a postconviction motion pursuant to
Finally, insofar as defendant contends that he was denied due process by the failure of County Court to hold a restitution hearing, the record does not reflect that any hearing was ever requested. Furthermore, County Court found, upon a review of the documentation filed, that no restitution hearing was required and ordered an amount of restitution to be paid by defendant based upon the detailed restitution figures submitted to the court. At sentencing, County Court acknowledged defend
Lahtinen, Rose, Lynch and Aarons, JJ., concur. Ordered that the judgment is affirmed.