Opinion
1366 KA 15–01204
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Mary MEYER, Defendant–Appellant.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the second degree ( Penal Law § 155.40[1] ). We agree with defendant that the waiver of the right to appeal is invalid because "the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Hassett, 119 A.D.3d 1443, 1443–1444, 988 N.Y.S.2d 831 [4th Dept. 2014], lv denied 24 N.Y.3d 961, 996 N.Y.S.2d 220, 20 N.E.3d 1000 [2014] [internal quotation marks omitted] ). In addition, "there is no basis [in the record] upon which to conclude that the court ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Jones, 107 A.D.3d 1589, 1590, 966 N.Y.S.2d 724 [4th Dept. 2013], lv denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013], quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
Defendant contends that there is no basis in the record supporting the amount of restitution and that the court should have conducted a hearing before determining the amount thereof. Defendant failed to preserve that contention for our review by failing to object to the imposition of restitution at sentencing or to request a hearing (see People v. M & M Med. Transp., Inc., 147 A.D.3d 1313, 1314–1315, 46 N.Y.S.3d 342 [4th Dept. 2017] ; People v. Lewis, 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; People v. Spossey, 107 A.D.3d 1420, 1420, 966 N.Y.S.2d 640 [4th Dept. 2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] ). In any event, that contention is without merit inasmuch as defendant "concede[d] the facts necessary to establish the amount of restitution as part of [the] plea allocution" ( People v. Consalvo, 89 N.Y.2d 140, 145, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996] ; see People v. Price, 277 A.D.2d 955, 955–956, 716 N.Y.S.2d 537 [4th Dept. 2000] ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.