Opinion
2015-10-2
The PEOPLE of the State of New York, RESPONDENT, v. Gregory P. KNAPP, DEFENDANT–APPELLANT.
John A. Herbowy, Rome, for Defendant–Appellant. Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
John A. Herbowy, Rome, for Defendant–Appellant. Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20), defendant contends that County Court erred in failing to consider his ability to pay the restitution award. That contention is not preserved for our review ( see People v. Pugliese, 113 A.D.3d 1112, 1112, 978 N.Y.S.2d 552, lv. denied23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146; People v. Shortell, 30 A.D.3d 837, 838, 816 N.Y.S.2d 769), and it is without merit in any event. “ ‘Consideration of defendant's ability to pay was not required because restitution was ordered as part of a nonprobationary sentence that included a period of incarceration as a significant component’ ” ( People v. Willis, 105 A.D.3d 1397, 1397, 963 N.Y.S.2d 894, lv. denied22 N.Y.3d 960, 977 N.Y.S.2d 190, 999 N.E.2d 555; see People v. Holmes, 300 A.D.2d 1072, 1073, 751 N.Y.S.2d 894). Contrary to defendant's further contention, the People established the amount of restitution by a preponderance of the evidence ( see generally§ 60.27[2]; CPL 400.30[4]; People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44; Pugliese, 113 A.D.3d at 1112–1113, 978 N.Y.S.2d 552). The victim's sworn testimony regarding the value of the stolen jewelry and weapons was sufficient to establish his out-of-pocket losses ( see People v. Howell, 46 A.D.3d 1464, 1465, 847 N.Y.S.2d 811, lv. denied10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87; Shortell, 30 A.D.3d at 837–838, 816 N.Y.S.2d 769).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.