Opinion
2012-12-19
The PEOPLE, etc., respondent, v. Michael B. KEENUM, appellant.
Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered August 17, 2011, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Where the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution, at sentencing, the defendant should be given an opportunity either to withdraw his plea or to accept the addition of restitution to his negotiated sentence ( see People v. Ortega, 61 A.D.3d 705, 706, 875 N.Y.S.2d 909;People v. Kegel, 55 A.D.3d 625, 867 N.Y.S.2d 96;People v. Henderson, 44 A.D.3d 873, 874, 843 N.Y.S.2d 678). Here, although the plea minutes do not indicate that the defendant's plea of guilty was negotiated with terms that included restitution, at sentencing, the defendant expressly indicated on the record that he wanted to pay even more than the amount of restitution requested. Accordingly, the defendant waived his contention that his guilty plea should be vacated because he was not advised of the terms of restitution prior to entering his plea ( see People v. Gibson, 88 A.D.3d 1012, 1012–1013, 931 N.Y.S.2d 530;People v. Faso, 82 A.D.3d 1584, 1585, 919 N.Y.S.2d 420;People v. Lugo, 191 A.D.2d 648, 595 N.Y.S.2d 114).
The defendant's contention that the County Court failed to inquire about a potential intoxication defense based upon certain post-plea assertions made by him is unpreserved for appellate review ( see People v. Modesto, 39 A.D.3d 567, 835 N.Y.S.2d 220;People v. Harrell, 288 A.D.2d 489, 735 N.Y.S.2d 392;People v. Sierra, 256 A.D.2d 598, 599, 683 N.Y.S.2d 563). Moreover, the rare case exception to the preservation requirement is not applicable ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Modesto, 39 A.D.3d at 567, 835 N.Y.S.2d 220;People v. Cooper, 34 A.D.3d 827, 823 N.Y.S.2d 917). In any event, the defendant's assertions do not warrant vacating his plea ( see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;People v. Gibson, 95 A.D.3d 1033, 1033–1034, 944 N.Y.S.2d 237;People v. Dazzo, 92 A.D.3d 796, 938 N.Y.S.2d 446).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).