People v. Lyman, 119 A.D.3d 968 (N.Y. App. Div. 2014). · Go Syfert
People v. Lyman, 119 A.D.3d 968 (N.Y. App. Div. 2014). Cases Citing This Book View Copy Cite
31 citation events (31 in the last 25 years) across 2 distinct courts.
Strongest positive: People v. White (John) (nyappterm, 2018-11-29)
Treatment trajectory · 2014 → 2026 · click a year to view as-of
2014 2020 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. White (John)
N.Y. App. Term. · 2018 · confidence medium
If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law." Here, there was no showing as to how the court determined the amount of restitution ( see People v Myron , 28 AD3d 681, 684 [2006]; People v Melvin , 11 AD3d 639, 639 [2004]), and the record is devoid of any evidence to allow for an accurate determination the proper amount of restitution and the proper manner of payment ( see Penal Law § 60.27 [2]…
discussed Cited as authority (rule) People v. Morehouse
N.Y. App. Div. · 2016 · confidence medium
We therefore deem it appropriate to exercise our interest of justice jurisdiction to take corrective action and modify the judgment by reversing the sentence only insofar as it directs defendant to pay restitution in the amount of $1,345 and remit the matter to County Court for the imposition of restitution in the correct amount (see People v Gardner, 129 AD3d at 1388 ; People v Lyman, 119 AD3d 968, 970 [2014]).
discussed Cited as authority (rule) People v. Goldman
N.Y. App. Div. · 2016 · confidence medium
Further, the narrow exception to the preservation requirement is not implicated here as defendant made no statements during the plea colloquy that cast doubt on his guilt (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Garry, 133 AD3d 1039, 1039-1040 [2015]; People v Lyman, 119 AD3d 968, 970 [2014]; People v Taylor, 89 AD3d 1143, 1144 [2011]).
discussed Cited as authority (rule) People v. Rushlow
N.Y. App. Div. · 2016 · confidence medium
Initially, we find that defendant’s appeal waivers were valid inasmuch as “County Court adequately explained the nature of the rights that defendant was waiving, the appeal rights that he could not waive, and that the right to appeal is separate and distinct from the rights automatically forfeited upon a plea of guilty” (People v Lyman, 119 AD3d 968, 969 [2014]; see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Perkins, 125 AD3d 1045, 1047 [2015]).
discussed Cited as authority (rule) People v. Creighton
N.Y. App. Div. · 2016 · confidence medium
This colloquy was sufficient to demonstrate that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Sanders, 25 NY3d at 341-342 [2015]; People v Handly, 122 AD3d 1007, 1008 [2014]; People v Lyman, 119 AD3d 968, 969 [2014]; People v Wolz, 112 AD3d 1150 , 1151-1152 [2013], lv denied 23 NY3d 1026 [2014]).
discussed Cited as authority (rule) People v. Richey
N.Y. App. Div. · 2015 · confidence medium
Accordingly, defendant’s waiver was valid, and that waiver forecloses our review of discretionary sentencing determinations (see People v Lyman, 119 AD3d 968, 969 [2014]; People v Wolz, 112 AD3d 1150 , 1152 [2013], lv denied 23 NY3d 1026 [2014]).
discussed Cited as authority (rule) People v. Mayo
N.Y. App. Div. · 2015 · confidence medium
Accordingly, we conclude that she knowingly, intelligently and voluntarily waived the right to appeal her conviction and sentence (see People v Lyman, 119 AD3d 968, 969 [2014]; People v Fligger, 117 AD3d 1343, 1344 [2014], lv denied 23 NY3d 1061 [2014]).
discussed Cited as authority (rule) People v. Perkins
N.Y. App. Div. · 2015 · confidence medium
Finally, defendant’s challenge to his enhanced sentence as harsh and excessive is precluded by his valid waiver of the right to appeal inasmuch as County Court advised him of the consequences of violating the conditions of his plea (see People v Lyman, 119 AD3d 968, 970 [2014]).
discussed Cited as authority (rule) People v. Perkins
N.Y. App. Div. · 2015 · confidence medium
Finally, defendant’s challenge to his enhanced sentence as harsh and excessive is precluded by his valid waiver of the right to appeal inasmuch as County Court advised him of the consequences of violating the conditions of his plea (see People v Lyman, 119 AD3d 968, 970 [2014]).
discussed Cited as authority (rule) People v. Balbuena
N.Y. App. Div. · 2014 · confidence medium
Inasmuch as County Court properly distinguished the waiver of the right to appeal from the rights that defendant had automatically forfeited by virtue of his guilty plea, ensured that defendant understood the rights that he was waiving and had defendant execute a detailed written waiver in open court that indicated, among other things, that he had an opportunity to discuss the waiver with counsel, we find that the appeal waiver was knowing, voluntary and intelligent (see People v Lyman, 119 AD3d 968, 969 [2014]; People v Dyckman, 114 AD3d 994, 995 [2014], lv denied 23 NY3d 1036 [2014]).
discussed Cited as authority (rule) People v. Balbuena
N.Y. App. Div. · 2014 · confidence medium
Inasmuch as County Court properly distinguished the waiver of the right to appeal from the rights that defendant had automatically forfeited by virtue of his guilty plea, ensured that defendant understood the rights that he was waiving and had defendant execute a detailed written waiver in open court that indicated, among other things, that he had an opportunity to discuss the waiver with counsel, we find that the appeal waiver was knowing, voluntary and intelligent (see People v Lyman, 119 AD3d 968, 969 [2014]; People v Dyckman, 114 AD3d 994, 995 [2014], lv denied 23 NY3d 1036 [2014]).
discussed Cited as authority (rule) People v. Williams
N.Y. App. Div. · 2014 · confidence medium
Likewise, defendant has failed to preserve his challenge to the restitution amount, as he did not request a restitution hearing or object to the amount of restitution awarded at sentencing (see People v Lyman, 119 AD3d 968, 970 [2014]; People v Naumowicz, 76 AD3d 747 , 748 [2010]).
discussed Cited as authority (rule) People v. Williams
N.Y. App. Div. · 2014 · confidence medium
Likewise, defendant has failed to preserve his challenge to the restitution amount, as he did not request a restitution hearing or object to the amount of restitution awarded at sentencing (see People v Lyman, 119 AD3d 968, 970 [2014]; People v Naumowicz, 76 AD3d 747 , 748 [2010]).
discussed Cited as authority (rule) People v. Brown
N.Y. App. Div. · 2014 · confidence medium
Although her waiver does not preclude her challenge to the amount of restitution to be awarded, inasmuch as the plea agreement did not specify the amount or if restitution would definitely be awarded (see People v Ortolaza, 120 AD3d 843, 844 [2014]; People v Lyman, 119 AD3d 968, 970 [2014] ), the issue is unpreserved because defendant did not request a hearing or otherwise challenge the award of restitution at sentencing, and corrective action in the interest of justice is unwarranted (see People v Ortolaza, 120 AD3d at 844 ; People v Smith, 112 AD3d 1232 , 1233 [2013], lv denied 22 NY3d 1203 …
discussed Cited as authority (rule) People v. Brown
N.Y. App. Div. · 2014 · confidence medium
Although her waiver does not preclude her challenge to the amount of restitution to be awarded, inasmuch as the plea agreement did not specify the amount or if restitution would definitely be awarded (see People v Ortolaza, 120 AD3d 843, 844 [2014]; People v Lyman, 119 AD3d 968, 970 [2014] ), the issue is unpreserved because defendant did not request a hearing or otherwise challenge the award of restitution at sentencing, and corrective action in the interest of justice is unwarranted (see People v Ortolaza, 120 AD3d at 844 ; People v Smith, 112 AD3d 1232 , 1233 [2013], lv denied 22 NY3d 1203 …
discussed Cited as authority (rule) PeoplevBrown
N.Y. App. Div. · 2014 · confidence medium
Although her waiver does not preclude her challenge to the amount of restitution to be awarded, inasmuch as the plea agreement did not specify the amount or if restitution would definitely be awarded (see People v Ortolaza, 120 AD3d 843, 844 [2014]; People v Lyman, 119 AD3d 968, 970 [2014]), the issue is unpreserved because defendant did not request a hearing or otherwise challenge the award of restitution at sentencing, and corrective action in the interest of justice is unwarrranted (see People v Ortolaza, 120 AD3d at 844 ; People v Smith, 112 AD3d 1232 , 1233 [2013], lv denied 22 NY3d 1203 …
discussed Cited "see, e.g." People v. Gardner
N.Y. App. Div. · 2015 · signal: see also · confidence medium
While the claim was not preserved for our review inasmuch as defendant did not request a hearing or otherwise challenge the amount awarded at the time of sentencing (see id.; see also People v Horne, 97 NY2d 404 , 414 n 3 [2002]), we deem it “appropriate to exercise our discretion to take corrective action in the interest of justice” (People v Lyman, 119 AD3d 968, 970 [2014]).
discussed Cited "see, e.g." People v. Banks
N.Y. App. Div. · 2014 · signal: see also · confidence medium
Finally, defendant’s valid waiver of the right to appeal precludes his assertion that his sentence was harsh and excessive (see People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]; see also People v Lyman, 119 AD3d 968, 970 [2014]).
discussed Cited "see, e.g." PeoplevBanks
N.Y. App. Div. · 2014 · signal: see also · confidence medium
Finally, defendant's valid waiver of the right to appeal precludes his assertion that his sentence was harsh and excessive (see People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied ___ NY3d ___ [Sept. 30, 2014]; see also People v Lyman, 119 AD3d 968, 970 [2014]).
discussed Cited "see, e.g." People v. Banks
N.Y. App. Div. · 2014 · signal: see also · confidence medium
Finally, defendant’s valid waiver of the right to appeal precludes his assertion that his sentence was harsh and excessive (see People v Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014]; see also People v Lyman, 119 AD3d 968, 970 [2014]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Raymond Lyman
Appellate Division of the Supreme Court of the State of New York.
Jul 3, 2014.
119 A.D.3d 968
Devine, Egan, Lahtinen, Stein.
Cited by 19 opinions  |  Published

[*969] Clark, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered June 25, 2012, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to grand larceny in the fourth degree, admitting that he stole a rifle from his father’s home that he knew belonged to another person. During the plea colloquy, defendant also waived bis right to appeal on the record, both verbally and in writing. He was promised a sentence of time served with five years of probation if he successfully completed substance abuse treatment, continued to test negative for prohibited substances, and followed all conditions of his interim release on probation. After defendant was discharged from treatment due to opiate use and failed to report for his presentence investigation interview, County Court concluded that he had violated the terms of the plea agreement and imposed a prison sentence of 1 to 4 years, along with restitution in the amount of $500. Defendant now appeals, arguing that his guilty plea was involuntary and that the waiver of his right to appeal was invalid. He further claims that County Court erred in ordering restitution, and challenges the court’s imposition of an enhanced sentence.

Initially, we reject defendant’s claim that his appeal waiver was invalid. During the plea colloquy, County Court adequately explained the nature of the rights that defendant was waiving, the appeal rights that he could not waive, and that the right to appeal is separate and distinct from the rights automatically forfeited upon a plea of guilty (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256-257 [2006]). Defendant orally confirmed that he understood the rights that he was relinquishing and that those rights were separate and distinct from the rights forfeited as a result of his guilty plea (cf. People v Bradshaw, 18 NY3d at 267). Defendant also signed a detailed written waiver of appeal in open court that both mirrored County Court’s colloquy and indicated that defendant had been given sufficient time to discuss the waiver with counsel and was proceeding knowingly, intentionally and voluntarily. Therefore, contrary to defendant’s contentions on appeal, County Court “carefully explained the appeal waiver and distinguished it from the other rights that defendant was forgoing as a consequence of his guilty plea, established that defense counsel had discussed it with him . . . and did not mislead him as to the . . . scope of the appeal waiver” (People v Wolz, 112 AD3d 1150, 1152 [2013]; see People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d at 256-257).

[*970] Inasmuch as County Court advised defendant of the plea conditions and the potential consequences of violating them, his contention that his enhanced sentence was harsh and excessive is precluded by his valid waiver of the right to appeal (see People v Long, 117 AD3d 1326, 1327 [2014]; cf. People v Bucknor, 116 AD3d 1233, 1234 n [2014]). Turning to defendant’s claims that survive his appeal waiver, his argument that his plea was involuntary is unpreserved for our review because he failed to move to withdraw his plea, and the narrow exception to the preservation requirement is inapplicable (see People v Watson, 115 AD3d 1016, 1017 [2014]; People v Smith, 112 AD3d 1232, 1232-1233 [2013], lv denied 22 NY3d 1203 [2014]). Defendant’s assertion that County Court failed to make an adequate inquiry into whether he violated the conditions of his plea lacks merit; the court conducted an adequate inquiry in which defendant was given an opportunity to explain his discharge from treatment and his failure to appear for the presentence investigation interview, and he admitted violating the plea conditions (see People v Mitchell, 112 AD3d 992, 993-994 [2013]).

Although defendant’s challenge to the amount of restitution ordered also survives his waiver because the plea agreement did not specify the amount to be awarded, the issue is unpreserved due to his failure to request a hearing or challenge the amount at sentencing (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Smith, 112 AD3d at 1233; People v Hulett, 106 AD3d 1330, 1331 [2013], lv denied 22 NY3d 1139 [2014]). Nevertheless, the People concede in their brief, and we agree, that “the record does not contain sufficient evidence to support [the] finding” with respect to the amount of restitution owed (Penal Law § 60.27 [2]) and, thus, we find this to be a case in which it is appropriate to exercise our discretion to take corrective action in the interest of justice. Accordingly, we modify the judgment in the interest of justice and remit for the sole purpose of holding a hearing to establish restitution.

Lahtinen, J.P, Stein, Egan Jr. and Devine, JJ., concur.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reversing so much thereof as ordered restitution; matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.