Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. M&M MEDICAL TRANSPORT, INC., Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. Eric T. Schneiderman, Attorney General, Albany (Thomas B. Litsky of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Thomas B. Litsky of Counsel), for Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting it, upon its plea of guilty, of grand larceny in the second degree (Penal Law § 155.40[1] ). County Court ordered defendant to pay a fine of $10,000 and $971,267.76 in restitution. We conclude that defendant's challenge to the factual sufficiency of its plea allocution is encompassed by the valid waiver of its right to appeal (see People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778, lv. denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 ; People v. Oberdorf, 136 A.D.3d 1291, 1292, 24 N.Y.S.3d 545, lv. denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 ), and that it is unpreserved for our review in any event (see People v. Lugg, 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785 ; see also People v. Burney, 93 A.D.3d 1334, 1334, 940 N.Y.S.2d 507 ; see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). We decline to consider defendant's challenge as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Defendant contends that the criminal action should be dismissed in furtherance of justice but, by pleading guilty, it has forfeited its right to raise that issue on appeal (see People v. Smith, 100 A.D.3d 936, 937, 954 N.Y.S.2d 187 ; People v. Guerra, 123 A.D.2d 882, 882, 507 N.Y.S.2d 660 ; see also People v. Harris, 15 A.D.3d 848, 848, 788 N.Y.S.2d 765, lv. denied 4 N.Y.3d 887, 798 N.Y.S.2d 732, 831 N.E.2d 977 ), and we likewise decline to consider that contention as a matter of our discretion in the interest of justice (see CPL 470.15[3][c] ). In any event, the valid waiver by defendant of the right to appeal encompasses the contention (see People v. Frazier, 63 A.D.3d 1633, 1633, 880 N.Y.S.2d 809, lv. denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 ).
We reject defendant's contention that the restitution order is illegal (see Penal Law § 60.27[1] ; see also § 10.00[7]; see generally General Construction Law § 37 ). Defendant's further contentions that the restitution order is excessive and lacks a record basis are encompassed by the valid waiver of the right to appeal inasmuch as the restitution directive was part of the plea bargain (see People v. Short, 128 A.D.3d 1414, 1415, 6 N.Y.S.3d 519, lv. denied 25 N.Y.3d 1208, 16 N.Y.S.3d 530, 37 N.E.3d 1173 ; People v. King, 20 A.D.3d 907, 907, 798 N.Y.S.2d 638 ; see generally People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and those contentions are not preserved for our review in any event. Defendant waived its right to a restitution hearing in its written plea agreement (see People v. Candalaria, 128 A.D.3d 1414, 1414, 6 N.Y.S.3d 518 ). Moreover, no objection was raised on behalf of defendant, during the plea proceeding or at sentencing, either to the court's alleged failure to follow proper procedures in ordering restitution (see People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 ; People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 ), or to the specific amount of restitution ultimately directed by the court (see Horne, 97 N.Y.2d at 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 ; People v. Favreau, 69 A.D.3d 1225, 1226, 892 N.Y.S.2d 807 ; People v. Milazo, 33 A.D.3d 1060, 1061, 822 N.Y.S.2d 332, lv. denied 8 N.Y.3d 883, 832 N.Y.S.2d 495, 864 N.E.2d 625 ). In any event, we conclude that defendant's promise in its plea agreement to make restitution in the precise amount subsequently ordered by the court, in explicit agreement with the audit conducted by the People with respect to the sum stolen, furnishes an adequate record basis for the court's directive (see People v. Rodwin, 283 A.D.2d 242, 242, 724 N.Y.S.2d 602, lv. denied 96 N.Y.2d 924, 732 N.Y.S.2d 641, 758 N.E.2d 667 ; People v. Kelsky, 144 A.D.2d 386, 387, 533 N.Y.S.2d 962, lv. denied 73 N.Y.2d 787, 536 N.Y.S.2d 747, 533 N.E.2d 677 ; see generally People
v. Consalvo, 89 N.Y.2d 140, 145–146, 651 N.Y.S.2d 963, 674 N.E.2d 672 ). Finally, we conclude that the amount of restitution is not excessive.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.