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

907
KA 10-00467
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSHUA L. MILLER, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered November 23, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted assault in the second degree (Penal Law §§
110.00, 120.05 [2]), defendant contends that County Court made an
insufficient inquiry regarding his waiver of the right to appeal and
thus that the waiver is invalid. We reject defendant’s contention.
The court need not engage in any particular litany regarding a waiver
of the right to appeal, so long as the court “make[s] certain that a
defendant’s understanding of the terms and conditions of a plea
agreement is evident on the face of the record” (People v Lopez, 6
NY3d 248, 256). Here, the record establishes that defendant’s waiver
of the right to appeal was made knowingly, intelligently, and
voluntarily (see id.; People v Schenk, 77 AD3d 1417, lv denied 15 NY3d
924, 16 NY3d 836). Although the valid waiver of the right to appeal
does not encompass defendant’s further contention that the Alford plea
was not knowingly, intelligently or voluntarily entered, defendant
failed to preserve that contention for our review by failing to move
to withdraw his plea or to vacate the judgment of conviction (see
People v McKeon, 78 AD3d 1617, 1618, lv denied 16 NY3d 799). In any
event, that contention is without merit. Despite his denials of
guilt, defendant stated clearly on the record that he wanted to enter
a guilty plea to avoid the possibility of a more severe sentence in
the event that the case proceeded to trial. Defendant’s statements
demonstrate that his decision to enter a guilty plea despite his
purported innocence was “the product of a voluntary and rational
                                 -2-                           907
                                                         KA 10-00467

choice,” and thus the Alford plea was proper (Matter of Silmon v
Travis, 95 NY2d 470, 475; see People v Hinkle, 56 AD3d 1210).

     Defendant contends that the People breached the plea agreement by
making a sentencing recommendation. Although defendant’s valid waiver
of the right to appeal does not encompass that contention (see People
v Vancise, 302 AD2d 864), defendant failed to preserve it for our
review by failing to object to the People’s recommendation during
sentencing (see People v Stripling, 136 AD2d 772, 773). In any event,
defendant’s contention is without merit. The prosecutor stated during
the plea colloquy that there was no sentencing promise, but the
prosecutor never agreed to refrain from making a sentencing
recommendation (cf. People v Tindle, 61 NY2d 752, 753-754; People v
Hoeltzel, 290 AD2d 587, 587-588). The valid waiver of the right to
appeal also does not encompass defendant’s further contention that the
court erred in determining the amount of restitution. Defendant,
however, waived his right to a hearing on restitution and thus failed
to preserve that contention for our review (see People v Jorge
N.T., 70 AD3d 1456, 1457, lv denied 14 NY3d 889), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     Finally, the valid waiver of the right to appeal does not
encompass defendant’s challenge to the severity of the sentence
because he waived his right to appeal before being advised of the
maximum possible sentence (see People v Martinez, 55 AD3d 1334, lv
denied 11 NY3d 927). We nevertheless conclude that the sentence is
not unduly harsh or severe.




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