State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 26, 2015 105675 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

PERRY L. MILLER,

Appellant.

________________________________

Calendar Date: February 18, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Joseph Nalli, Fort Plain, for appellant, and appellant 

pro se.

Robert M. Carney, District Attorney, Schenectady (Peter

Willis of counsel), for respondent.

__________

Lahtinen, J.

Appeal from a judgment of the County Court of Schenectady

County (Drago, J.), rendered January 23, 2013, convicting

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

the first degree.

Defendant was charged with various crimes in connection

with the stabbing death of the female victim. Pursuant to a plea

agreement, defendant pleaded guilty to manslaughter in the first

degree in full satisfaction of the charges and waived his right

to appeal. Defendant thereafter moved to withdraw his plea,

contending that it was not voluntarily entered because counsel

did not fully advise him regarding a justification defense or

inform him that the crime charged required an intent to cause
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serious physical injury. County Court denied the motion without

a hearing and thereafter sentenced defendant, as a second felony

offender, to 20 years in prison, to be followed by five years of

postrelease supervision. Defendant was also required to pay

restitution in the amount of $8,010 to cover the cost of the

victim's funeral. Defendant now appeals.

We affirm. Initially, we reject defendant's contention

that his waiver of the right to appeal was invalid. The record

reflects that County Court distinguished the right to appeal from

the rights automatically forfeited upon a guilty plea and

defendant stated that he understood and was relinquishing the

right voluntarily. He thereafter executed a counseled written

waiver of appeal. As such, we are satisfied that defendant

validly waived the right to appeal his conviction and sentence

(see People v Chavis, 117 AD3d 1193, 1193-1194 [2014]; People v

Marshall, 108 AD3d 884, 884 [2013], lv denied 22 NY3d 957

[2013]). In light of his valid appeal waiver, defendant's claim

that his sentence is harsh and excessive is precluded from our

review (see People v White, 119 AD3d 1286, 1287 [2014], lv denied

___ NY3d ___ [Feb. 18, 2015]; People v Fligger, 117 AD3d 1343,

1344 [2014], lv denied 23 NY3d 1061 [2014]).

Defendant's contention that his plea was not knowingly,

intelligently or voluntarily entered because he was not informed

of the specific amount of restitution at the time of the plea is

unpreserved for our review given his failure to make a proper

postallocution motion on that ground (see People v O'Neill, 116

AD3d 1240, 1241 [2014]; People v Small, 82 AD3d 1451, 1452

[2011], lv denied 17 NY3d 801 [2011]), and the narrow exception

to the preservation rule is not implicated (see People v Lopez,

71 NY2d 662, 665-666 [1988]). Moreover, his challenge to the

propriety of the award of restitution is also unpreserved for our

review, in light of his failure to request a restitution hearing

or object to the amount awarded at sentencing (see People v

Ortolaza, 120 AD3d 843, 844 [2014]; People v Bressard, 112 AD3d

988, 989 [2013], lv denied 22 NY3d 1137 [2014]).

Defendant's claim that his guilty plea was not voluntarily

entered, due to counsel's failure to advise him as to the

People's burden in the context of a justification defense and
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that the crime charged required an intent to cause serious

physical injury, survives his appeal waiver and has been

preserved by his motion to withdraw his plea (see People v Morey,

110 AD3d 1378, 1379 [2013], lv denied 23 NY3d 965 [2014]; People

v Wyant, 47 AD3d 1068, 1069 [2008], lv denied 10 NY3d 873

[2008]). The record reflects that counsel did discuss a possible

justification defense with defendant, and County Court confirmed

that defendant understood that, by pleading guilty, he was giving

up his right to make the People "meet their burden to prove

charges beyond a reasonable doubt" and that he was "giving up

[his] right to present any defenses that you may have with

respect to this charge." Moreover, prior to accepting the guilty

plea, County Court inquired whether defendant was acting "with

intent to cause serious physical injury to another person" when

he stabbed the victim and defendant answered in the affirmative. 

Accordingly, defendant has not demonstrated that he was

prejudiced by the alleged errors (see People v Mercer, 105 AD3d

1091, 1093-1094 [2013], lv denied 21 NY3d 1017 [2013]; People v

Kreydatus, 305 AD2d 935, 936 [2003], lv denied 100 NY2d 595

[2003]). Defendant's remaining contentions have been examined

and found to be lacking in merit. 

Peters, P.J., Garry and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court