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

430
KA 12-02278
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIFFANY L. SCHULTZ, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered June 13, 2012. The judgment convicted defendant,
upon her plea of guilty, of attempted burglary in the second degree.

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

     Memorandum: On appeal from a judgment convicting her upon her
plea of guilty of attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), defendant contends that her waiver of the
right to appeal is invalid, that her sentence is unduly harsh and
severe, and that County Court erred in imposing a 10% surcharge of the
total amount of restitution. The record establishes that defendant
knowingly, voluntarily and intelligently waived the right to appeal
(see generally People v Lopez, 6 NY3d 248, 256), and that valid waiver
forecloses any challenge by defendant to the severity of the sentence
(see id. at 255; see generally People v Lococo, 92 NY2d 825, 827;
People v Hidalgo, 91 NY2d 733, 737).

     The valid waiver of the right to appeal, however, does not
encompass defendant’s challenge to the restitution surcharge because
the court failed to advise defendant before she waived her right to
appeal of the potential range of the surcharge that could be imposed
as part of the requirement to pay restitution (see generally People v
Newman, 21 AD3d 1343, 1343; People v McLean, 302 AD2d 934, 934).
Although defendant failed to preserve for our review her contention
that the court erred in imposing the maximum restitution surcharge of
10% rather than the minimum 5% surcharge (see People v Kirkland, 105
AD3d 1337, 1338-1339, lv denied 21 NY3d 1043), we nevertheless
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]). We conclude that
                                 -2-                           430
                                                         KA 12-02278

the court erred in imposing the 10% surcharge because, as the People
correctly concede, 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 a particular case exceeds five
percent of the entire amount of the payment or the amount actually
collected” (Penal Law § 60.27 [8]).




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
