Opinion
105578
11-13-2014
The PEOPLE of the State of New York, Respondent, v. Jessica BROWN, Appellant.
Lisa A. Burgess, Indian Lake, for appellant. Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.
Lisa A. Burgess, Indian Lake, for appellant.
Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and LYNCH, JJ.
Opinion
LAHTINEN, J.Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered December 10, 2012, convicting defendant upon her plea of guilty of the crimes of criminal possession of a criminal substance in the third degree (three counts) and criminal sale of a controlled substance in the third degree.In 2012, defendant was charged in two indictments with crimes related to narcotic possession and sale. Following the denial of her application requesting judicial diversion to a substance abuse treatment program, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree in full satisfaction of both indictments. Defendant also waived her right to appeal all challenges other than constitutional issues or a violation of County Court's sentencing commitment in connection with the plea. Thereafter, in accord with the plea agreement, defendant was sentenced to an aggregate term of five years in prison to be followed by two years of postrelease supervision. County Court also directed defendant to pay restitution in the amount of $430, along with a 10% collection surcharge. Defendant appeals, and we affirm.
Defendant's valid waiver of her right to appeal precludes her claim that County Court should have granted her application for judicial diversion (see People v. Smith, 112 A.D.3d 1232, 1232, 976 N.Y.S.2d 747 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ; People v. Roche, 106 A.D.3d 1328, 1329, 965 N.Y.S.2d 245 [2013] ). 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 A.D.3d 843, 844, 991 N.Y.S.2d 171 [2014] ; People v. Lyman, 119 A.D.3d 968, 970, 988 N.Y.S.2d 717 [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 A.D.3d at 844, 991 N.Y.S.2d 171 ; People v. Smith, 112 A.D.3d 1232, 1233, 976 N.Y.S.2d 747 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, ROSE and LYNCH, JJ., concur.