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

489
KA 14-00679
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVEN WISNIEWSKI, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

STEVEN WISNIEWSKI, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JODI A. DANZIG OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered April 13, 2011. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Supreme Court, Erie County, for resentencing.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of grand larceny in the third
degree (Penal Law former § 155.35) and offering a false instrument for
filing in the first degree (former § 175.35). In appeal No. 2, he
appeals from a judgment convicting him upon his plea of guilty of
grand larceny in the second degree (§ 155.40 [1]). At the outset, we
conclude with respect to both appeals that defendant knowingly,
voluntarily and intelligently waived his right to appeal, and that
waiver encompasses his challenge to the severity of the sentences (see
People v Lopez, 6 NY3d 248, 255-256).

     Although defendant’s challenges to the voluntariness of his pleas
in each appeal survive his valid waiver of the right to appeal (see
People v Gimenez, 59 AD3d 1088, 1088-1089, lv denied 12 NY3d 816), the
contention in his main brief that his pleas were rendered involuntary
by an alleged misstatement by Supreme Court concerning the maximum
                                 -2-                           489
                                                         KA 14-00679

legal sentence for grand larceny in the third degree is not preserved
for our review because he did not move to withdraw the pleas or to
vacate the judgments of conviction on that ground (see People v
Halsey, 108 AD3d 1123, 1124). We conclude in any event that the court
“did not misinform him of the sentencing range to which he was
exposed” (People v Bloom, 96 AD3d 1406, 1406, lv denied 19 NY3d 1024).
The further contention in defendant’s pro se supplemental brief that
the pleas were coerced by the conduct of the court “is belied by [his]
responses to [the court’s] questions during the plea colloquy”
(Gimenez, 59 AD3d at 1089; see People v Montgomery, 63 AD3d 1635,
1636, lv denied 13 NY3d 798).

     We agree with defendant that the court did not validly order him
to pay restitution at sentencing in connection with his guilty plea in
appeal No. 2, although it is clear from the record that the court and
the parties intended that defendant would be ordered to pay
restitution, and that the court’s failure to do so at sentencing was a
mere oversight. Indeed, defendant’s victims sought restitution in
their victim impact statement and, thus, “in the absence of a finding
that the interests of justice dictated otherwise, [the court] was
required to order restitution as a part of the sentence” (People v
Johnson, 208 AD2d 1175, 1176, lv denied 85 NY2d 910; see Penal Law §
60.27 [1]). We therefore modify the judgment in appeal No. 2 by
vacating the sentence, and we remit the matter to Supreme Court for
resentencing that will include restitution (see generally People v
Sparber, 10 NY3d 457, 471-472).

      We have considered the remaining contention raised in
defendant’s pro se supplemental brief with respect to both appeals and
conclude that it is without merit.




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
