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

880
KA 07-02181
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH R. SPENCER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered April 16, 2007. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of burglary in the third degree
(Penal Law § 140.20) and, in appeal No. 2, he appeals from a judgment
convicting him upon his plea of guilty of attempted criminal
possession of a controlled substance in the fifth degree (§§ 110.00,
220.06 [2]) and criminally possessing a hypodermic instrument (§
220.45). With respect to appeal No. 1, “[t]he challenge by defendant
to the amount of restitution is not foreclosed by his waiver of the
right to appeal because the amount of restitution was not included in
the terms of the plea agreement” (People v Sweeney, 4 AD3d 769, 770,
lv denied 2 NY3d 807; cf. People v Gilmore, 12 AD3d 1155, 1156).
Defendant waived that challenge, however, because he failed to object
to the amount of restitution at sentencing (see Sweeney, 4 AD3d at
770). He also “failed to preserve that challenge for our review, . .
. by failing to request a hearing or to object to the amount of
restitution” (People v Lovett, 8 AD3d 1007, 1008, lv denied 3 NY3d
673, 677; see People v Horne, 97 NY2d 404, 414 n 3). Furthermore,
there is no support in the record for defendant’s contention that he
was deprived of the benefit of his plea bargain, i.e., that he did not
receive the benefit that he was promised in exchange for pleading
guilty (cf. People v Pichardo, 1 NY3d 126). With respect to
defendant’s further contention in appeal No. 1, that County Court
erred in refusing to suppress his statements to the police, that
contention is encompassed by defendant’s valid waiver of the right to
appeal, and we therefore do not address it (see People v Kemp, 94 NY2d
831, 833).

    With respect to appeal No. 2, defendant contends that his waiver
                                 -2-                           880
                                                         KA 07-02181

of indictment was invalid inasmuch as there is no evidence in the
record before us that a local criminal court held him over for the
action of a grand jury on the charges in the superior court
information (SCI). Defendant is correct that his contention “is a
jurisdictional one which survives his appeal waiver and guilty plea”
(People v Dennis, 66 AD3d 1058, 1058; see People v Boston, 75 NY2d
585, 589 n), and we agree with defendant that his contention has
merit. As the record establishes, at the time defendant waived
indictment and consented to be prosecuted by an SCI, he had already
been indicted on the burglary charges, which arose from the same
incident. Consequently, we agree with defendant that, “[g]iven the
objective and the plain language of CPL 195.10 (2) (b), the conclusion
is inescapable that waiver cannot be accomplished after indictment, as
was the case here, even where it is the defendant who orchestrates the
scenario” (Boston, 75 NY2d at 589). We therefore reverse the judgment
in appeal No. 2, vacate the sentence imposed, and dismiss the SCI.




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
