        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1376
KA 12-02071
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADRIAN HUDDLESTON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EVAN HANNAY OF COUNSEL),
FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Donald E.
Todd, A.J.), rendered September 14, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree
(two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the surcharge to 5% of the amount
of restitution and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of two counts of burglary in the third degree
(Penal Law § 140.20). We agree with defendant that his waiver of the
right to appeal is not valid (see People v Jackson, 99 AD3d 1240,
1240-1241, lv denied 20 NY3d 987; see generally People v Lopez, 6 NY3d
248, 256), inasmuch as “the record fails to establish that defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty” (Jackson,
99 AD3d at 1241 [internal quotation marks omitted]). Although
defendant’s challenge to the severity of the sentence therefore is not
encompassed by the invalid waiver (see e.g. id.), we nevertheless
conclude that the sentence is not unduly harsh or severe.

     Even assuming, arguendo, that defendant’s waiver of the right to
appeal was valid, we conclude that it would not encompass his
challenge to the 10% restitution surcharge because County Court failed
to advise defendant before he waived his right to appeal of the
potential surcharge that could be imposed as part of the requirement
to pay restitution (see People v Schultz, 117 AD3d 1560, 1560, lv
denied 23 NY3d 1067). Although defendant failed to preserve for our
review his contention that the court erred in imposing a surcharge of
10% of the amount of restitution ordered, instead of the 5% surcharge
                                 -2-                          1376
                                                         KA 12-02071

directed by Penal Law § 60.27 (8), we exercise our power to review it
as a matter of discretion in the interest of justice (see People v
Perez, 130 AD3d 1496, 1497; cf. People v Kirkland, 105 AD3d 1337,
1338-1339, lv denied 21 NY3d 1043), and we modify the judgment
accordingly. The additional surcharge was not authorized because
there was no “filing of an affidavit of the official or organization
designated pursuant to [CPL 420.10 (8)] demonstrating that the actual
cost of the collection and administration of restitution . . . in
[this] case exceeds five percent of the entire amount of the payment
or the amount actually collected” (Penal Law § 60.27 [8]; see Perez,
130 AD3d at 1497).




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
