SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

764 

KA 11-02374 

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

TERRANCE F. LUCIEER, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT. 

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO, FOR RESPONDENT. 

 

Appeal from a judgment of the Oswego County Court (Walter W.

Hafner, Jr., J.), rendered March 24, 2011. The judgment convicted

defendant, upon his plea of guilty, of grand larceny in the fourth

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him, upon his plea of guilty, of grand larceny in the

fourth degree (Penal Law § 155.30 [1]). In appeal No. 2, defendant

appeals from a judgment entered the same day as the judgment in appeal

No. 1, revoking the sentence of probation imposed upon a previous

conviction of grand larceny in the fourth degree (id.), based upon his

admitted violation of probation, and sentencing him to a term of

incarceration. We reject defendant’s contention that the waiver of

the right to appeal is invalid. County Court “made clear that the

waiver of the right to appeal was a condition of [the] plea, not a

consequence thereof, and the record reflects that defendant understood

that the waiver of the right to appeal was ‘separate and distinct from

those rights automatically forfeited upon a plea of guilty’ ” (People

v Graham, 77 AD3d 1439, 1439, lv denied 15 NY3d 920, quoting People v

Lopez, 6 NY3d 248, 256). 

The contention of defendant in appeal No. 1 that he was denied

effective assistance of counsel because his attorney failed to pursue

an allegedly meritorious speedy trial motion does not survive his plea

and valid waiver of the right to appeal inasmuch as defendant “failed

to demonstrate that the plea bargaining process was infected by [the]

allegedly ineffective assistance or that defendant entered the plea

because of [defense counsel’s] allegedly poor performance” (People v

Paduano, 84 AD3d 1730, 1731 [internal quotation marks omitted]; see

People v Slingerland, 101 AD3d 1265, 1267, lv denied 20 NY3d 1104;
-2- 764 

KA 11-02374 

People v Speranza, 96 AD3d 1164, 1165). In any event, defendant did

not have a meritorious speedy trial claim inasmuch as the People

demonstrated “sufficient excludable time” to establish compliance with

CPL 30.30 (People v Kendzia, 64 NY2d 331, 338; see People v Walker, 27

AD3d 899, 900, lv denied 7 NY3d 764; see generally People v Sweet, 79

AD3d 1772). Defense counsel therefore “was not ineffective in failing

to pursue a motion that had no chance of success” (People v Rivers, 67

AD3d 1435, 1436, lv denied 14 NY3d 773, reconsideration denied 14 NY3d

892; see People v Caban, 5 NY3d 143, 152).

Defendant further contends that the court erred in ordering

restitution based in part on the replacement cost, rather than the

fair market value, of the stolen property. Although “[d]efendant’s

challenge to the amount of restitution 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 [internal quotation marks

omitted]; see People v Miller, 87 AD3d 1303, 1304, lv denied 18 NY3d

926), that contention is unpreserved for our review inasmuch as

defendant did not object to the victim’s valuation testimony or

otherwise alert the sentencing court to his objection (see CPL 470.05

[2]). In any event, we conclude that the People established the

amount of restitution by a preponderance of the evidence, and there is

no basis to disturb the restitution award (see CPL 400.30 [4]; People

v Tzitzikalakis, 8 NY3d 217, 221-222; People v LaVilla, 87 AD3d 1369,

1369-1370; see generally People v Periard, 15 AD3d 693, 694).

Finally, defendant’s valid waiver of the right to appeal

encompasses his contention in both appeals that the sentence imposed

pursuant to the plea agreement is unduly harsh and severe (see People

v Rodman, 104 AD3d 1186, 1188; Tessitore, 101 AD3d at 1621-1622; see

generally Lopez, 6 NY3d at 255-256). 

Entered: June 14, 2013 Frances E. Cafarell

Clerk of the Court