Opinion
1431 KA 13-00574.
12-23-2015
The PEOPLE of the State of New York, Respondent, v. Kevin M. CAMP, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35 4 ) and two counts of disseminating indecent material to minors in the second degree (§ 235.213 ). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and he therefore failed to preserve for our review his contention that the plea was improperly entered (see People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Pitcher, 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352, lv. denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104). This case does not fall into the “rare exception to the preservation requirement set forth in Lopez because nothing in the plea allocution calls into question the voluntariness of the plea or casts ‘significant doubt’ upon his guilt” (Pitcher, 126 A.D.3d at 1472, 6 N.Y.S.3d 352). Defendant waived his right to a hearing on restitution and therefore failed to preserve for our review his contention that County Court erred in its determination of the amount of restitution (see People v. Miller, 87 A.D.3d 1303, 1304, 930 N.Y.S.2d 143, lv. denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967; People v. Roots, 48 A.D.3d 1031, 1032, 850 N.Y.S.2d 767). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see Miller, 87 A.D.3d at 1304, 930 N.Y.S.2d 143). Defendant also failed to preserve for our review his contention that the court erred in imposing a collection surcharge of 10%, rather than 5%, of the amount of restitution, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Kosty, 122 A.D.3d 1408, 1409, 996 N.Y.S.2d 449, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44; People v. Kirkland, 105 A.D.3d 1337, 1338–1339, 963 N.Y.S.2d 793, lv. denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856).
Defendant next contends that the court did not comply with CPL 400.15 in sentencing him as a second violent felony offender. Defendant failed to preserve that contention for our review (see People v. Judd, 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312, lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508; see also People v. Loper, 118 A.D.3d 1394, 1395, 988 N.Y.S.2d 744, lv. denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169) and, in any event, it lacks merit. Although the court misspoke when it asked defendant if he was a second felony offender rather than a second violent felony offender, the People filed a second violent felony offender statement pursuant to CPL 400.15(2). In addition, defendant was asked, and he admitted, that he was convicted of the prior offense, which was a violent felony (see CPL 400.153 ). We thus conclude that there was substantial compliance with CPL 400.15 (see People v. Myers, 52 A.D.3d 1229, 1230, 859 N.Y.S.2d 824). To the extent that defendant's contention that he was denied effective assistance of counsel survives his plea of guilty (see People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814, lv. denied 9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204), we reject that contention. The record establishes that defendant received “an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; see People v. Arney, 120 A.D.3d 949, 950, 990 N.Y.S.2d 752). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.