State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 106982 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

CHRISTOPHER MILLER,

Appellant.

________________________________

Calendar Date: February 19, 2016

Before: Peters, P.J., Garry, Rose, Lynch and Clark, JJ.

__________

Susan Patnode, Rural Law Center of New York, Castleton

(Kelly L. Egan of counsel), for appellant.

Mary E. Rain, District Attorney, Canton (Ramy Louis of

counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the County Court of St. Lawrence

County (Richards, J.), rendered April 17, 2014, convicting

defendant upon his plea of guilty of the crime of larceny in the

fourth degree. 

Defendant pleaded guilty to the reduced charge of grand

larceny in the fourth degree and waived his right to appeal. 

County Court sentenced defendant as a second felony offender to a

prison term of 2 to 4 years, ordered shock incarceration

participation and imposed restitution. Defendant appeals.

Initially, we are unpersuaded by defendant's contention

that his waiver of the right to appeal was not knowing, voluntary
-2- 106982 

and intelligent. Review of the plea colloquy reveals that County

Court distinguished the right to appeal from the rights

automatically forfeited by the guilty plea, and defendant

executed a written waiver of appeal in open court after he

acknowledged that he understood the waiver of the right to

appeal. Defendant's claim that the sentence is harsh and

excessive is thus precluded by the valid waiver of the right to

appeal (see People v Bethea, 133 AD3d 1033, 1033 [2015]; People v

Beblowski, 131 AD3d 1303, 1304 [2015], lv denied 26 NY3d 1085

[2015]). 

Defendant further argues that his plea was based upon an

understanding that he would serve a shorter prison term due to

his anticipated participation in the shock incarceration program. 

As this claim challenges the voluntariness of the plea, it would

survive his appeal waiver (see People v Benson, 100 AD3d 1108,

1108-1109 [2012]). However, defendant notes in his brief that he

is not seeking to withdraw or vacate his plea as involuntary, and

his motion before County Court to vacate the sentence on this

ground was withdrawn. In any event, the determination as to

whether to accept any particular individual into that program

lies within the authority of the Department of Corrections and

Community Supervision, rather than the court (see People v

Vanguilder, 32 AD3d 1110, 1110-1111 [2006], lv denied 7 NY3d 904

[2006]; People v Taylor, 284 AD2d 573, 574 [2001], lv denied 96

NY2d 925 [2001]).

Turning to defendant's challenge to the restitution

imposed, the record clearly reflects that defendant was informed

that restitution was part of the underlying plea agreement. 

Further, although his challenge to the amount of restitution

imposed survives his valid waiver of appeal, it is unpreserved

given his failure to request a hearing or otherwise contest the

amount of restitution imposed at sentencing (see People v Bethea,

133 AD3d at 1034; People v Miller, 126 AD3d 1233, 1234 [2015], lv

denied 25 NY3d 1168 [2015]), and we decline to exercise our

interest of justice jurisdiction to take corrective action. 
-3- 106982 

We do, however, find merit in defendant's contention that

County Court improperly ordered him to sell his property in order

to satisfy the restitution amount. Forfeiture of property was

not a condition of the plea agreement. Further, although the

People assert that the court was entitled to decree a forfeiture

of defendant's property as part of the judgment of conviction in

accordance with Penal Law § 60.30, the record does not reflect

that any order or judgment of forfeiture was issued by the court

or that the People complied with the civil forfeiture procedures

set forth in CPLR article 13-A (see People v Carmichael, 123 AD3d

1053, 1053 [2014]; People v McCoy, 96 AD3d 1674, 1675-1676

[2012]).

Peters, P.J., Rose, Lynch and Clark, JJ., concur.

ORDERED that the judgment is modified, on the law, by

vacating that portion of the sentence as ordered defendant's

property sold, and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court