| People v Brady |
| 2009 NY Slip Op 00596 [59 AD3d 748] |
| February 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph E.Brady, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 4, 2006, convicting defendant upon his plea of guilty of the crime of burglaryin the second degree.
After waiving indictment, defendant pleaded guilty to burglary in the second degree ascharged in a superior court information. Under the terms of the plea agreement, defendant wassentenced as a second felony offender to five years in prison, to be followed by five years ofpostrelease supervision, and ordered to pay restitution for the burglary charged in theinformation and other burglary charges disposed of by the agreement. Following a hearing,defendant was ordered to pay restitution in the amount of $795.35 and was sentenced inaccordance with the plea. Defendant now appeals, contending that his guilty plea was notknowing, voluntary and intelligent.
Initially, this challenge is not preserved for our review because defendant never moved towithdraw his plea or to vacate the judgment of conviction (see People v Robles, 53 AD3d 686, 687 [2008], lv denied11 NY3d 794 [2008]; People vStokely, 49 AD3d 966, 967 [2008]). Moreover, the exception to the preservation rule(see People v Louree, 8 NY3d541, 545-546 [2007]; People v Lopez, 71 NY2d 662, 666 [1988]) is inapplicablehere. Although defendant asserts that he was originally unaware that the restitution agreed uponincluded not only the [*2]burglary charged in the information butalso the other burglary charges disposed of by the plea agreement, County Court afforded himseveral opportunities to move to withdraw his plea after he became aware of this requirement,and he declined to do so.
To the extent that defendant contends that the restitution ordered at the hearing improperlyincluded $457.50 for another burglary charge to which he did not plead guilty, this claim is alsowithout merit. Penal Law § 60.27 (4) (a) provides that, for purposes of ordering restitution,the "offense" shall "include the offense for which a defendant was convicted, as well as anyother offense . . . that is contained in any other accusatory instrument disposed ofby any plea of guilty by the defendant to an offense." Here, defendant's plea agreement disposedof the additional burglary charge and, consequently, the restitution ordered properly included the$457.50 in relation to the charge.
Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.