                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:    May 5, 2016                     106916
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________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

ROBERT D. DECKER,
                    Appellant.
________________________________


Calendar Date:   March 23, 2016

Before:   Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.

                              __________


     Matthew Hug, Troy, for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Matthew B. Keller of counsel), for respondent.

                              __________


Peters, P.J.

      Appeals (1) from a judgment of the County Court of
Montgomery County (Catena, J.), rendered July 24, 2014,
convicting defendant upon his plea of guilty of the crime of
criminal possession of a forged instrument in the second degree,
(2) from a judgment of the County Court of Saratoga County
(Scarano, J.), rendered July 25, 2014, convicting defendant upon
his plea of guilty of the crimes of grand larceny in the third
degree, scheme to defraud in the first degree, offering a false
instrument in the first degree and petit larceny, and (3) by
permission, from an order of the County Court of Montgomery
County (Catena, J.), entered November 6, 2014, which denied
defendant's motion pursuant to CPL 440.10 to vacate the judgment
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of conviction, without a hearing.

      Following an investigation by the Attorney General's
office, defendant – a home improvement contractor – was accused
of engaging in a multi-county scheme in which he bilked dozens of
clients out of substantial sums of money. In accordance with a
plea offer proposed by the People, defendant pleaded guilty to a
Montgomery County indictment charging him with the crime of
criminal possession of a forged instrument in the second degree
and waived his right to appeal in exchange for a promised prison
sentence of 1 to 3 years and restitution not to exceed $500.
Thereafter, pursuant to a written plea agreement, defendant
waived indictment and pleaded guilty to a Saratoga County
superior court information (hereinafter SCI) charging him with
the crimes of grand larceny in the third degree, scheme to
defraud in the first degree, offering a false instrument in the
first degree and petit larceny in full satisfaction of all
charged and uncharged crimes relating to the operation of his
home improvement contracting business during the period from
April 2011 to December 2013. The People further agreed that, in
consideration of the Saratoga County plea, defendant's son would
be permitted to plead guilty to a misdemeanor in satisfaction of
a then-pending felony charge and that additional charges would
not be pursued against the son in connection with his involvement
in defendant's business. Defendant waived his right to appeal,
agreed to pay restitution in an amount not exceeding $375,000 and
was promised an aggregate prison term of 2 to 6 years to run
consecutively to the sentence imposed in Montgomery County.

      After the entry of the pleas in both counties, defendant,
represented by newly assigned counsel, separately moved in
Montgomery County Court and Saratoga County Court to withdraw his
respective guilty pleas on the basis that, among other things, he
was denied the effective assistance of counsel and his pleas were
coerced by both the threat of his son's prosecution and
imprisonment as well as the People's promise of leniency if he
were to capitulate to the Saratoga County plea agreement.
Defendant's motions were denied, he was sentenced by each court
in accordance with the terms of the applicable plea agreement and
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a hearing was scheduled by Saratoga County Court to determine the
amount of restitution. Thereafter, pursuant to CPL 440.10,
defendant sought to vacate both his Montgomery County and
Saratoga County judgments of conviction on the ground that his
guilty pleas were coerced. Defendant also moved in Saratoga
County Court to renew his motion to withdraw his guilty plea or,
alternatively, to renew his motion to vacate the judgment of
conviction, alleging that the SCI was jurisdictionally defective.
Montgomery County Court denied defendant's CPL 440.10 motion
without a hearing. Saratoga County Court denied defendant's
motion to renew and, upon converting his CPL 440.10 motion into a
motion to renew his motion to withdraw the guilty plea, denied
such motion. Following a hearing, Saratoga County Court ordered
defendant to pay restitution in the amount of $167,434.19.
Defendant appeals from both judgments of conviction and, by
permission, the denial of his CPL 440.10 motion without a
hearing.

      While defendant's claim that the SCI was jurisdictionally
defective survives both his guilty plea and valid appeal waiver
(see People v Pierce, 14 NY3d 564, 570 n 2 [2010]; People v Rapp,
133 AD3d 979, 980 [2015]; People v Jackson, 128 AD3d 1279, 1279
[2015], lv denied 26 NY3d 930 [2015]), it is lacking in merit.
Contrary to defendant's contention, the scheme to defraud offense
charged in the SCI is plainly the same offense as that charged in
the felony complaint, and there is no factual discrepancy between
the two (see People v Milton, 21 NY3d 133, 136-137 [2013];
compare People v Siminions, 112 AD3d 974, 975 [2013], lv denied
24 NY3d 1088 [2014]). Accordingly, such count of the SCI charged
an offense for which "defendant was held for action of a grand
jury" (CPL 195.20), thus complying with the pertinent statutory
requirement for waiving indictment and serving as a proper
jurisdictional predicate for defendant's guilty plea (see People
v Milton, 21 NY3d at 137; People v Waid, 26 AD3d 734, 735 [2006],
lv denied 6 NY3d 839 [2006]; People v Verrone, 266 AD2d 16, 17
[1999]; see generally People v Pierce, 14 NY3d at 571; People v
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Menchetti, 76 NY2d 473, 477 [1990]).1 Further, by incorporating
the elements of the crime by specific reference to the applicable
statutory provision, the SCI "effectively charge[d]
. . . defendant with the commission of a particular crime" and
afforded him "fair notice of the charges made against him"
(People v Ray, 71 NY2d 849, 850 [1988] [internal quotation marks
and citations omitted]; see People v Kamburelis, 100 AD3d 1189,
1189-1190 [2012]; People v McDuffie, 89 AD3d 1154, 1155 [2011],
lv denied 19 NY3d 964 [2012]). To the extent that defendant's
argument is addressed to the factual sufficiency of the SCI, such
claim is precluded by his guilty plea (see People v Martinez, 106
AD3d 1379, 1380 [2013], lv denied 22 NY3d 957 [2013]; People v
Morales, 66 AD3d 1083, 1084 [2009]; People v Quinones, 51 AD3d
1226, 1227 [2008], lv denied 10 NY3d 938 [2008]).

      Nor are we persuaded by defendant's challenge to the
summary denial of his motions to withdraw his respective guilty
pleas. "Whether to permit a defendant to withdraw his or her
plea of guilty is left to the sound discretion of County Court,
and withdrawal will generally not be permitted absent some
evidence of innocence, fraud or mistake in its inducement"
(People v Burns, 133 AD3d 1045, 1046 [2015] [internal quotation
marks and citations omitted]; see People v Curry, 123 AD3d 1381,
1383 [2014], lv denied 25 NY3d 950 [2015]; People v Young, 112
AD3d 1068, 1069 [2013], lv denied 22 NY3d 1204 [2014]). An


    1
        To the extent that defendant's assertion that Saratoga
County Court lacked geographic jurisdiction over the scheme to
defraud count can be viewed as a challenge to the validity of the
waiver of indictment or SCI, which would survive his guilty plea
and appeal waiver (see People v Pierce, 14 NY3d at 570 n 2;
People v Boston, 75 NY2d 585, 589 n [1990]), such contention must
fail. The record establishes that one or more of the elements of
the scheme to defraud charge occurred in Saratoga County,
rendering it a proper venue for prosecution of such crime (see
CPL 20.40 [1] [a]; People v White, 104 AD3d 1056, 1057 [2013], lv
denied 21 NY3d 1021 [2013]; People v Banks, 38 AD3d 938, 939
[2007], lv denied 9 NY3d 840 [2007]).
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evidentiary hearing will be required "only where the record
presents a genuine question of fact as to the plea's
voluntariness" (People v Perkins, 125 AD3d 1045, 1046 [2015]; see
People v Brown, 14 NY3d 113, 116 [2010]; People v Trimm, 129 AD3d
1215, 1215-1216 [2015]; People v Cole, 118 AD3d 1098, 1100
[2014]).

      Here, the record demonstrates that the terms and conditions
of the Montgomery County plea were extensively explained to
defendant and the matter was twice adjourned to provide defendant
additional time to consider the offer and discuss the matter with
counsel. During the thorough and detailed plea colloquy that
ensued, defendant acknowledged that he understood the
consequences of pleading guilty, stated that he was satisfied
with counsel's services and readily admitted to conduct
constituting the relevant crime. When defendant stated that he
was led to believe that the People would not pursue charges
against his son if he accepted the plea offer and that his son's
arrest two days earlier amounted to "a lot of pressure" with
regard to his decision to plead guilty, Montgomery County Court
immediately interjected and conducted an appropriate inquiry.
Defendant then twice confirmed that no promises were made in
connection with the plea other than those set forth on the
record, that he had not been threatened, coerced or otherwise
influenced into pleading guilty and that he was pleading guilty
freely, voluntarily and because he was, in fact, guilty. Under
such circumstances, Montgomery County Court was not required to
hold a hearing to further inquire into the existence of any
purported off-the-record promise with respect to defendant's son
(see Matter of Benjamin S., 55 NY2d 116, 120-121 [1982]; People v
Walker, 26 AD3d 797, 798 [2006], lv denied 6 NY3d 854 [2006];
People v Salvagni, 199 AD2d 680, 680 [1993]; People v Sanchez,
184 AD2d 537, 538 [1992], lv denied 80 NY2d 909 [1992]).

      While defendant's Saratoga County guilty plea was entered
in return for a promise of leniency with regard to pending and
contemplated charges against defendant's son, it is settled that
"'a plea agreement is not inherently coercive or invalid simply
because it affords a benefit to a loved one, as long as the plea
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itself is knowingly, voluntarily and intelligently made'" (People
v Phillips, 71 AD3d 1181, 1183-1184 [2010], lv denied 15 NY3d 755
[2010], quoting People v Etkin, 284 AD2d 579, 580 [2001], lv
denied 96 NY2d 862 [2001]; see People v Fiumefreddo, 82 NY2d 536,
545 [1993]). Saratoga County Court engaged in a detailed plea
colloquy wherein it informed defendant of the ramifications of
pleading guilty, including the rights he was relinquishing, and
ascertained that he was entering the plea agreement freely and
voluntarily. Defendant's claim that his plea was coerced is
belied by both his statements during the plea allocution and the
counseled seven-page written plea agreement he executed, wherein
he confirmed that no threats or promises had been made to induce
him into pleading guilty and attested that his guilty plea was
being entered "freely, voluntarily, knowingly, and without
coercion of any kind." Based on our review of the record before
us, we are convinced that defendant's guilty pleas were
knowingly, intelligently and voluntarily made and find no abuse
of discretion in the summary denial of his motions to withdraw
such pleas (see People v McNew, 117 AD3d 1491, 1492 [2014], lv
denied 24 NY3d 1003 [2014]; People v Young, 112 AD3d at 1069;
People v Goodell, 104 AD3d 1026, 1026 [2013], lv denied 22 NY3d
1138 [2014]; People v Wolf, 88 AD3d 1266, 1267 [2011], lv denied
18 NY3d 863 [2011]).

      Defendant's claim that Montgomery County Court erred in
summarily denying his CPL 440.10 motion – which was premised on
the same allegations of coercion lodged in his motions to vacate
his guilty pleas – is similarly unavailing. No hearing was
required inasmuch as defendant's arguments could properly be
resolved based upon the contents of the record, and the proffered
affidavits failed to demonstrate that "the nonrecord facts sought
to be established are material and would entitle him to relief"
(People v Satterfield, 66 NY2d 796, 799 [1985]; see People v
Rebelo, 137 AD3d 1315, 1317 [2016]; People v Griffin, 89 AD3d
1235, 1237-1238 [2011]).

      Finally, defendant contends that the amount of restitution
is excessive and unsupported. Inasmuch as the Saratoga County
plea agreement contemplated restitution but did not specify the
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amount to be awarded, this contention is not precluded by
defendant's appeal waiver (see People v Robinson, 133 AD3d 1043,
1044 [2015]; People v Gardner, 129 AD3d 1386, 1388 [2015]). It
is, however, without merit. "In seeking restitution, the People
bore the burden of demonstrating the amount of the victim's
out-of-pocket losses by a preponderance of the evidence. The
amount gained by defendant or taken from the victim must be
offset against the value of any benefit that may have been
conferred upon the victim, and 'the People must show both
components of the restitution equation, the amount taken minus
the benefit conferred'" (People v Johnson, 91 AD3d 1121, 1123
[2012], lv denied 18 NY3d 959 [2012], quoting People v
Tzitzikalakis, 8 NY3d 217, 221-222 [2007]; accord People v Russo,
68 AD3d 1437, 1438 [2009]; see Penal Law § 60.27 [2]).

      Focusing on 12 of the victims to whom restitution was
awarded, defendant claims that the People failed to prove the
value (or lack thereof) of certain completed or partially
completed work that he performed under the respective contracts.
Mindful that "[a]ny relevant evidence, not legally privileged,
[is admissible] regardless of its admissibility under the
exclusionary rules of evidence" (CPL 400.30 [4]; see People v
Consalvo, 89 NY2d 140, 145 [1996]; People v Tuper, 125 AD3d 1062,
1062 [2015], lv denied 25 NY3d 1078 [2015]), we cannot agree. In
our view, the evidence presented at the hearing – which included
the sworn affidavits of each of the 12 victims at issue and other
supporting documentation with regard to the value (if any)
conferred by defendant's work – was sufficient to establish a
prima facie case of the victims' out-of-pocket losses (see People
v Stevens, 84 AD3d 1424, 1427 [2011], lv denied 17 NY3d 822
[2011]; People v Ford, 77 AD3d 1176, 1176-1177 [2010], lv denied
17 NY3d 816 [2011]; People v Russo, 68 AD3d at 1438).
Accordingly, "the burden of going forward [fell] to . . .
defendant to offer evidence contradicting the People's
calculation" (People v Tzitzikalakis, 8 NY3d at 222 n 2). As
defendant failed to do so, the restitution awarded to these 12
victims will not be disturbed.
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      Defendant's remaining ascriptions of error, to the extent
not specifically discussed herein, have been reviewed and found
to be unavailing.

     Lahtinen, Rose, Lynch and Aarons, JJ., concur.



     ORDERED that the judgments and order are affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
