SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1006 

KA 13-00493 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JON T. FONTAINE, DEFENDANT-APPELLANT.

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY DAVIS OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JON T. FONTAINE, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Vincent M.

Dinolfo, J.), rendered November 1, 2012. The judgment convicted

defendant, upon his plea of guilty, of attempted burglary in the

second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the amount of restitution

ordered and as modified the judgment is affirmed, and the matter is

remitted to Monroe County Court for further proceedings in accordance

with the following memorandum: On appeal from a judgment convicting

him, upon his plea of guilty, of attempted burglary in the second

degree (Penal Law §§ 110.00, 140.25 [2]), defendant contends in his

main and pro se supplemental briefs that his waiver of the right to

appeal was not valid. We reject that contention. The plea colloquy,

together with the written waiver of the right to appeal executed by

defendant, establishes that defendant’s waiver of the right to appeal

was knowingly, intelligently, and voluntarily entered (see People v

Johnson, 122 AD3d 1324, 1324; People v Guantero, 100 AD3d 1386, 1386-

1387, lv denied 21 NY3d 1004; People v Jones, 96 AD3d 1637, 1637, lv

denied 19 NY3d 1103). Defendant’s contention in his main and pro se

supplemental briefs that the indictment was facially defective because

it failed to specify the precise date on which the offenses were

committed and instead gave a 13-month time span was forfeited by

defendant’s guilty plea and, in any event, the waiver of the right to

appeal encompasses that contention (see People v Turley, 130 AD3d

1578, 1578, lv denied 26 NY3d 972, reconsideration denied 26 NY3d

1093; People v Slingerland, 101 AD3d 1265, 1265-1266, lv denied 20

NY3d 1104; see generally People v Iannone, 45 NY2d 589, 600-601). The

waiver of the right to appeal also encompasses defendant’s contention

in his main brief that County Court erred in issuing orders of
-2- 1006 

KA 13-00493 

protection in favor of his father, brother, and stepsister inasmuch as

the orders of protection were disclosed as part of defendant’s plea

prior to both the plea colloquy and defendant’s waiver of the right to

appeal (cf. People v Nicometo, 137 AD3d 1619, 1620; People v Lilley,

81 AD3d 1448, 1448, lv denied 17 NY3d 860). 

Defendant’s contention in his main brief that the court erred in

directing him to pay a specified amount of restitution without

conducting a hearing “ ‘is not foreclosed by his waiver of the right

to appeal because the amount of restitution was not included in the

terms of the plea agreement’ ” (People v Tessitore, 101 AD3d 1621,

1622, lv denied 20 NY3d 1104; see People v Burns, 111 AD3d 1293,

1293). We agree with defendant that “the record ‘does not contain

sufficient evidence to establish the amount [of restitution to be

imposed]’ ” (People v Lawson [appeal No. 7], 124 AD3d 1249, 1250). We

thus conclude that the court “ ‘erred in determining the amount of

restitution without holding a hearing’ ” (id.). We therefore modify

the judgment by vacating the amount of restitution ordered, and we

remit the matter to County Court for a hearing to determine the amount

of restitution to be paid by defendant. 

We have reviewed defendant’s remaining contentions in his pro se

supplemental brief and conclude that none warrants reversal or further

modification of the judgment. 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court