| People v Bassoff |
| 2008 NY Slip Op 04363 [51 AD3d 682] |
| May 6, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EstherBassoff, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Barbara Kornblauof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.),rendered May 9, 2007, convicting her of scheme to defraud in the first degree and grand larcenyin the third degree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court,Nassau County, for further proceedings pursuant to CPL 460.50 (5).
The defendant, a "business broker," pleaded guilty to scheme to defraud in the first degreeand grand larceny in the third degree, in exchange for a sentence of five years probation, plusrestitution in the sum of $175,000. The defendant was to pay $40,000 of that restitution prior tosentencing, and was to complete sworn financial disclosure forms. If she willfully failed to makethe so-called "up-front" payment, then her plea agreement authorized the sentencing court toimpose a sentence of incarceration of six months, plus five years of probation and restitution. Thedefendant consented to this arrangement. She did not indicate that she would not be able tosatisfy her up-front payment obligation. The defendant never made the $40,000 payment. Thesentencing court sentenced her to six months of incarceration, plus five years' probation andrestitution. The defendant never moved to withdraw her plea prior to the imposition of sentence(see CPL 220.60 [3]), and never moved to vacate her judgment of conviction.
The defendant failed to preserve for appellate review her argument that her constitutionalrights were violated when the sentencing court sentenced her to a term of imprisonment without[*2]conducting an indigency hearing (see People v Ruz,70 NY2d 942, 943 [1988]). In any event, her contention is without merit (see People v Birch, 35 AD3d 1026[2006]; People v Almo, 300 AD2d 503 [2002]; People v Recinos, 208 AD2d 569[1994]; People v Felman, 141 AD2d 889 [1988]; cf. Bearden v Georgia, 461 US660 [1983]). The defendant received the sentence she bargained for. Furthermore, under thecircumstances presented, through her numerous court appearances and representations of futurepayment that never materialized, as well as her failure to furnish accurate financial disclosureforms, the Supreme Court had an ample basis to conclude that the defendant's failure to make the$40,000 restitution payment was willful.
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Prudenti, P.J., Fisher, Miller and Balkin, JJ., concur.