Opinion
1189 CA 13-02248
11-21-2014
The PEOPLE of the State of New York, Respondent, v. Diana KOSTY, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant. Valerie G. Gardner, District Attorney, Penn Yan (Megan P. Dadd of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.
Valerie G. Gardner, District Attorney, Penn Yan (Megan P. Dadd of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, and SCONIERS, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting her upon her plea of guilty of offering a false instrument for filing in the first degree (Penal Law § 175.35 ). Defendant contends that her waiver of the right to appeal was invalid because County Court did not explain exceptions to the waiver. We reject that contention (see People v. Corbin, 121 A.D.3d 803, 804, 993 N.Y.S.2d 746 ). Defendant's contention that she did not admit to the element of intent to defraud during her plea is actually a challenge to the factual sufficiency of the plea allocution, and that challenge is encompassed by her valid waiver of the right to appeal (see People v. Gardner, 101 A.D.3d 1634, 1634, 956 N.Y.S.2d 367 ; People v. Bailey, 49 A.D.3d 1258, 1259, 852 N.Y.S.2d 892, lv. denied 10 N.Y.3d 932, 862 N.Y.S.2d 338, 892 N.E.2d 404 ). In any event, defendant failed to preserve her contention for our review inasmuch as she failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623 ), and this case does not fall within the “rare exception to the preservation rule” (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Defendant's valid waiver of the right to appeal also encompasses her contention that the court erred in directing her to pay a specified amount of restitution without conducting a hearing “inasmuch as that amount was an explicit part of defendant's agreed-upon plea bargain” (People v. Taylor, 70 A.D.3d 1121, 1122, 894 N.Y.S.2d 572, lv. denied 14 N.Y.3d 845, 901 N.Y.S.2d 151, 927 N.E.2d 572 ; see People v. Wapniewski, 115 A.D.3d 1251, 1251–1252, 982 N.Y.S.2d 800, lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 808, 16 N.E.3d 1288 ). In any event, defendant failed to preserve her contention for our review by challenging the court's determination as to the amount of restitution or by requesting a hearing on the issue (see People v. Giovanni, 53 A.D.3d 778, 778–779, 861 N.Y.S.2d 214, lv. denied 11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 ). Defendant also failed to preserve for our review her contention that the court erred in imposing a collection surcharge of 10% of the amount of restitution (see CPL 470.05[2] ; People v. Kirkland, 105 A.D.3d 1337, 1338, 963 N.Y.S.2d 793, lv. denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3 ][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.