Opinion
2019–13188 S.C.I. No. 17-1295
03-23-2022
The PEOPLE, etc., respondent, v. Stefan MALGARINOS, appellant.
Jason M. Bernheimer, Valhalla, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfranceso and William C. Milaccio of counsel), for respondent.
Jason M. Bernheimer, Valhalla, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfranceso and William C. Milaccio of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Westchester County (Michael A. Martinelli, J.), rendered September 18, 2019, convicting him of grand larceny in the second degree and scheme to defraud in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant pleaded guilty to grand larceny in the second degree ( Penal Law § 155.40[1] ) and scheme to defraud in the first degree (id. § 190.65[1][b]). The plea minutes demonstrate that the defendant was told that restitution was part of his plea agreement, and at the plea proceeding, the defendant consented to the specific amount of restitution imposed. Accordingly, the defendant waived his contentions that the County Court was required to conduct a hearing and to make its own independent determination of the amount of restitution (see People v. Vazquez, 173 A.D.3d 907, 908, 99 N.Y.S.3d 884 ; People v. Dougherty, 121 A.D.3d 1011, 1012, 993 N.Y.S.2d 774 ).
The defendant's contention that the County Court was required to consider his ability to pay restitution is unpreserved for appellate review (see CPL 470.05[2] ; People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 ; People v. Totesau, 112 A.D.3d 977, 979, 977 N.Y.S.2d 364 ), and, in any event, without merit (see Penal Law § 60.27 ; People v. Harris, 72 A.D.3d 1110, 1112–1113, 900 N.Y.S.2d 137 ; People v. Henry, 64 A.D.3d 804, 807, 881 N.Y.S.2d 701 ). We note that in the event that the defendant is unable to pay the restitution as ordered, he may seek resentencing pursuant to CPL 420.10(5) (see People v. Vazquez, 173 A.D.3d at 908, 99 N.Y.S.3d 884 ; People v. Harris, 72 A.D.3d at 1113, 900 N.Y.S.2d 137 ).
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.