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

440
KA 14-01365
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES GREFER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered January 9, 2014. 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 as a matter of discretion in the interest of
justice and on the law by vacating the order of restitution with
respect to Geico and reducing the surcharge on the remaining orders of
restitution to 5% of the amount of restitution, and as modified the
judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of grand larceny in the second
degree (Penal Law § 155.40 [1]) and, in appeal No. 2, he appeals from
a judgment convicting him upon his plea of guilty of criminal tax
fraud in the third degree (Tax Law § 1804). The guilty pleas were
entered in one plea proceeding. We agree with defendant that the
waiver of the right to appeal is invalid because “the minimal inquiry
made by County Court was insufficient to establish that the court
engage[d] the defendant in an adequate colloquy to ensure that the
waiver of the right to appeal was a knowing and voluntary choice”
(People v Hassett, 119 AD3d 1443, 1443-1444, lv denied 24 NY3d 961
[internal quotation marks omitted]). In addition, “there is no basis
upon which to conclude that the court ensured ‘that the defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty’ ” (People
v Jones, 107 AD3d 1589, 1590, lv denied 21 NY3d 1075, quoting People v
Lopez, 6 NY3d 248, 256).

     Defendant contends with respect to appeal No. 1 that the court
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                                                         KA 14-01365

erred in ordering restitution to Geico because, as the People concede,
it did not sustain any out-of-pocket loss (see Penal Law § 60.27 [1];
People v Horne, 97 NY2d 404, 412). Although defendant failed to
preserve that contention for our review, we nevertheless exercise our
power to address it as a matter of discretion in the interest of
justice (see People v Anderson, 70 AD3d 1320, 1320, lv denied 14 NY3d
885; see generally Horne, 97 NY2d at 414 n 3), and we modify the
judgment in appeal No. 1 by vacating that order of restitution.

     Defendant further contends with respect to appeal No. 1 that the
court erred in imposing a 10% surcharge on the restitution orders. An
additional surcharge of 5% is authorized only “[u]pon the filing of an
affidavit of the official or organization designated pursuant to [CPL
420.10 (8)] demonstrating that the actual cost of the collection and
administration of restitution . . . in a particular case exceeds [5%]
of the entire amount of the payment” (Penal Law § 60.27 [8]). “There
is no affidavit in the record supporting the imposition of a 10%
surcharge on the amount of restitution ordered in this case” (People v
Whitmore, 234 AD2d 1008, 1008; see People v Huddleston, 134 AD3d 1458,
1459, lv denied 27 NY3d 966). Although defendant failed to preserve
his contention for our review (see People v Kirkland, 105 AD3d 1337,
1338-1339, lv denied 21 NY3d 1043), we again exercise our power to
review it as a matter of discretion in the interest of justice (see
People v Parker, 137 AD3d 1625, 1626-1627; Huddleston, 134 AD3d at
1459). We therefore further modify the judgment in appeal No. 1 by
reducing the surcharge on the remaining orders of restitution to 5%.

     Finally, we reject defendant’s contention in appeal Nos. 1 and 2
that the sentence is unduly harsh and severe.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
