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

1112
KA 14-00884
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD J. SHAW, DEFENDANT-APPELLANT.


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

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered June 3, 2013. The judgment convicted
defendant, upon his plea of guilty, of rape 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 rape in the third degree (Penal Law §
130.25 [2]). Initially, we agree with defendant that his waiver of
the right to appeal was invalid because “ ‘the minimal inquiry made by
County Court was insufficient to establish that the court engage[d]
defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice’ ” (People v
Carrasquillo, 130 AD3d 1498, 1498; see People v Harris, 121 AD3d 1423,
1424, lv denied 25 NY3d 989). Although defendant’s challenge to the
voluntariness of his plea would have survived even a valid waiver of
the right to appeal (see People v Adams, 57 AD3d 1385, 1385, lv denied
12 NY3d 780), “defendant did not move to withdraw the plea or to
vacate the judgment of conviction and thus failed to preserve his
[challenge] for our review” (People v Dozier, 59 AD3d 987, 987, lv
denied 12 NY3d 815). Defendant also failed to preserve for our review
his challenge to the amount of restitution ordered by the court
inasmuch as he did not object to the amount of restitution (see People
v Spossey, 107 AD3d 1420, 1420, lv denied 22 NY3d 1159), or to the
fact that the court relied exclusively on the presentence report in
determining the amount of restitution (see People v Cooke, 21 AD3d
1339, 1339).

     We reject defendant’s contention that he was deprived of
effective assistance of counsel. Defendant received an advantageous
plea, and “nothing in the record casts doubt on the apparent
                                 -2-                          1112
                                                         KA 14-00884

effectiveness of counsel” (People v Ford, 86 NY2d 397, 404; see
generally People v Pitcher, 126 AD3d 1471, 1473, lv denied 25 NY3d
1169).

     Finally, we reject defendant’s contention that the sentence is
unduly harsh and severe.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
