| People v Stephens |
| 2008 NY Slip Op 04406 [51 AD3d 1225] |
| May 15, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rebekah F.Stephens, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered April 27, 2007, convicting defendant upon her plea of guilty of the crime of identitytheft in the second degree.
Defendant waived indictment and, pursuant to a negotiated plea agreement, pleaded guilty toa superior court information charging her with identity theft in the second degree. Following anadjournment, defendant was sentenced to one year in the local jail and ordered to pay restitutionin the amount of $1,743.76, plus the statutory surcharge. Defendant now appeals, contending thatthe restitution order should be vacated.
We affirm. To the extent that defendant challenges the amount of restitution ordered,defendant's failure to request a hearing or otherwise contest that sum at sentencing renders thisclaim unpreserved for our review (seePeople v Snyder, 38 AD3d 1068, 1069 [2007]; People v Hayward, 31 AD3d 1195, 1195-1196 [2006]; People v Williams, 28 AD3d1005, 1011 [2006], lv denied 7 NY3d 819 [2006]; People v Melino, 16 AD3d 908,911 [2005], lv denied 5 NY3d 791 [2005]). Were we to reach this issue, we wouldobserve that although there initially was some dispute as to the amount of restitution to beordered, sentencing was adjourned to explore this issue, the People subsequently requested thatthe restitution order be amended, defense counsel [*2]indicateddefendant's acceptance of the revised figure and the record as a whole supports the amount ofrestitution awarded.
As for defendant's related claims that she lacked the capacity to agree to the restitutionordered because she was under the influence of certain prescription medication at the time ofsentencing and that she was denied the effective assistance of counsel because counsel allegedlyfailed to, among other things, adequately explain the basis for the amount of restitution imposed,we need note only that there is nothing in the sentencing minutes that raises any questionsregarding defendant's mental clarity or capacity at the time the revised restitution figure wasagreed upon. In any event, defendant's claims in this regard are more appropriately pursued via aCPL article 440 motion (see People vMcKeney, 45 AD3d 974, 975 [2007]; People v Bonelli, 41 AD3d 972, 973 [2007], lv denied 9NY3d 921 [2007]).
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.