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

511
KA 09-00027
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD E. MCCARTHY, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Spencer J.
Ludington, A.J.), rendered February 21, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted aggravated murder and
arson in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted aggravated murder (Penal Law §§
110.00, 125.26 [1]) and arson in the third degree (§ 150.10 [1]). We
reject defendant’s contention that his waiver of the right to appeal
is invalid. County Court “made clear that the waiver of the right to
appeal was a condition of [the] plea, not a consequence thereof, and
the record reflects that defendant understood that the waiver of the
right to appeal was ‘separate and distinct from those rights
automatically forfeited upon a plea of guilty’ ” (People v Graham, 77
AD3d 1439, 1439, lv denied 15 NY3d 920, quoting People v Lopez, 6 NY3d
248, 256; see People v McKeon, 78 AD3d 1617). Defendant’s further
contention that his plea was not knowing, intelligent and voluntary
“ ‘because he did not recite the underlying facts of the crime[s] but
simply replied to County Court’s questions with monosyllabic responses
is actually a challenge to the factual sufficiency of the plea
allocution,’ which is encompassed by the valid waiver of the right to
appeal” (People v Simcoe, 74 AD3d 1858, 1859, lv denied 15 NY3d 778,
quoting People v Bailey, 49 AD3d 1258, 1259, lv denied 10 NY3d 932;
see People v Grimes, 53 AD3d 1055, 1056, lv denied 11 NY3d 789).
Defendant’s challenge to the sufficiency of the factual allocution is
unpreserved for our review inasmuch as he did not move to withdraw the
plea or to set aside the judgment of conviction on that ground (see
People v Lopez, 71 NY2d 662, 665). In any event, there is no merit to
defendant’s challenge because “there is no requirement that defendant
recite the underlying facts of the crime to which he [or she] is
                                 -2-                           511
                                                         KA 09-00027

pleading guilty” (Bailey, 49 AD3d at 1259).

     The valid waiver by defendant of the right to appeal does not
encompass his challenge to the amount of restitution ordered inasmuch
as that amount was not included in the terms of the plea agreement
(see People v Straw, 70 AD3d 1341, lv denied 14 NY3d 844; cf. People v
Butler, 81 AD3d 1465; People v Thomas, 77 AD3d 1325, 1326). Defendant
failed to preserve his challenge to the amount of restitution for our
review, however, by failing to object to that amount at the time of
sentencing or requesting a hearing on that issue (see People v Jorge
N.T., 70 AD3d 1456, 1457, lv denied 14 NY3d 889; People v Hannig, 68
AD3d 1779, 1780, lv denied 14 NY3d 801), and we decline to exercise
our power to review that challenge as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     Finally, defendant contends that the imposition of restitution
was illegal because the New York State Police Department was not a
“victim” within the meaning of the restitution statute (Penal Law §
60.27). We agree with defendant that his contention concerning the
alleged illegality of the restitution portion of the sentence is not
precluded by his waiver of the right to appeal, nor is preservation
required with respect to that contention (see People v Pump, 67 AD3d
1041, 1042, lv denied 13 NY3d 941; People v Long, 27 AD3d 302, lv
denied 6 NY3d 850; People v Casiano, 8 AD3d 761, 762). Nonetheless,
we conclude that there is no merit to defendant’s contention. Penal
Law § 60.27 defines the term victim in relevant part as “the victim of
the offense” (§ 60.27 [4] [b]). The term offense includes “the
offense for which a defendant was convicted, as well as any other
offense that is part of the same criminal transaction or that is
contained in any other accusatory instrument disposed of by any plea
of guilty by the defendant to an offense” (§ 60.27 [4] [a]). Here,
defendant drove his vehicle head-on into a marked police vehicle
operated by a police sergeant, causing significant damage to the
police vehicle. Thus, “the restitution did not reimburse the police
for the normal operating costs of law enforcement that are voluntarily
incurred . . .; instead, it covered the cost of repairing a police
[vehicle] that was damaged as a direct result of defendant’s criminal
conduct” (People v Barnett, 237 AD2d 917, 918, lv denied 90 NY2d 855;
see People v Cruz, 81 NY2d 996, 997-998).




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
