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

940
KA 11-02453
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LYLE L. BOATMAN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), 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 May 28, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the surcharge and as
modified the judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his guilty plea of two counts of attempted
criminal possession of a controlled substance in the third degree
(Penal Law §§ 110.00, 220.16 [1]) and, in appeal No. 2, he appeals
from a judgment revoking the sentence of probation imposed upon his
previous conviction of criminal possession of a weapon in the third
degree (§ 265.02 [1]) and sentencing him to an indeterminate term of
incarceration. In both appeals, defendant contends that his waiver of
the right to appeal was invalid on the ground that County Court
conflated the right to appeal with the rights automatically forfeited
upon a plea of guilty. We reject that contention. The record
establishes that the court, in the plea colloquy, properly
“ ‘describ[ed] the nature of the right being waived without lumping
that right into the panoply of trial rights automatically forfeited
upon pleading guilty’ ” (People v Tabb, 81 AD3d 1322, 1322, lv denied
16 NY3d 900, quoting People v Lopez, 6 NY3d 248, 257; see People v
Harris, 94 AD3d 1484, 1485, lv denied 19 NY3d 961). Defendant’s
waiver of the right to appeal is therefore valid, and that waiver
encompasses his challenge to the severity of the sentence in each
appeal (see Lopez, 6 NY3d at 256; Harris, 94 AD3d at 1485; see also
People v Gordon, 43 AD3d 1330, 1331, lv denied 9 NY3d 1006).

     Conversely, with respect to appeal No. 1, “[d]efendant’s waiver
                                 -2-                           940
                                                         KA 11-02453

of the right to appeal does not foreclose his [contention] that the
restitution portion of the sentence was illegal” (People v Pump, 67
AD3d 1041, 1042, lv denied 13 NY3d 941; see also People v Stachnik,
101 AD3d 1590, 1592, lv denied 20 NY3d 1104) and, based upon “the
‘essential nature’ of the right to be sentenced as provided by law,”
we review that contention notwithstanding defendant’s failure to raise
it at sentencing (People v Fuller, 57 NY2d 152, 156; see People v
McCarthy, 83 AD3d 1533, 1534-1535, lv denied 17 NY3d 819). Contrary
to defendant’s contention, however, a defendant convicted of, inter
alia, a class C “ ‘felony involving the sale of a controlled
substance’ may be ordered to repay a law enforcement agency ‘the
amount of funds expended in the actual purchase’ of a controlled
substance” (People v Diallo, 88 AD3d 1152, 1154, lv denied 18 NY3d
993, quoting Penal Law § 60.27 [9]). Section 60.27 (9) was amended in
1991 “to authorize restitution to law enforcement agencies for
unrecovered funds utilized to purchase narcotics as part of
investigations leading to convictions” (People v Logan, 185 AD2d 994,
995). We therefore conclude in appeal No. 1 that the court properly
directed defendant to pay restitution to the City of Oswego Police
Department for the funds it expended in buying drugs from him.

     The People correctly concede with respect to defendant’s further
contention in appeal No. 1 that the court erred in imposing a
surcharge on that restitution order. Penal Law § 60.27 (9) further
provides that “[a]ny restitution which may be required to be made to a
law enforcement agency pursuant to this section . . . shall not
include a designated surcharge.” We therefore modify the judgment in
appeal No. 1 by vacating the surcharge imposed.




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
