Summary
This Appellate Division, Third Department decision affirms a County Court judgment convicting the defendant of second-degree assault following a guilty plea. The court upheld the validity of the defendant's appeal waiver, which was part of a plea agreement that promised a time-served sentence and probation contingent on no further criminal conduct. Because the defendant violated the agreement by facing new charges, the trial court imposed an enhanced prison sentence and ordered restitution. The appellate court found the appeal waiver enforceable and determined that the defendant's challenges to the enhanced sentence and restitution amount were either precluded by the waiver or unpreserved for review.
Topics
Practice areas
Questions Presented
- Whether the appellant's written waiver of appeal was valid and precludes review of the enhanced sentence.
- Whether the restitution order is preserved for appellate review.
Holdings
- The waiver of appeal was knowing, voluntary, and intelligent; therefore the appellant's challenge to the enhanced sentence is precluded.
- The restitution issue was not preserved for review because the appellant neither objected at sentencing nor raised the issue on appeal.
Key quotations
“Given the valid appeal waiver and County Court's advisement of the consequences of incurring additional criminal charges prior to sentencing, defendant's challenge to the severity of the enhanced sentence is precluded.” (*1)
“Thus, the issue is unpreserved for our review.” (*2)
Factual background
The appellant pleaded guilty to assault in the second degree, waived his right to appeal as a condition of the plea agreement, and was promised time served and five years of probation. He was later arrested for new criminal conduct; the County Court, after advising him of the consequences, imposed an enhanced two‑year prison term, three years of post‑release supervision, and restitution of $6,720.10.
Procedural history
Defendant pleaded guilty to assault in the second degree, executed a written waiver of appeal, was sentenced to time served and five years probation. After a subsequent arrest, the County Court enhanced the sentence to two years imprisonment plus supervision and restitution. Defendant appealed the enhanced sentence and restitution order.