| People v Marvin |
| 2009 NY Slip Op 09821 [68 AD3d 1729] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kenneth J.Marvin, Jr., Appellant. (Appeal No. 1.) |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedFebruary 14, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in thesecond degree and criminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In these consolidated appeals, defendant appeals from judgments convictinghim upon his pleas of guilty of, inter alia, two counts of burglary in the second degree (PenalLaw § 140.25 [2]). Contrary to the contention of defendant in each appeal, County Courtproperly refused to suppress his written statement to the police. The record of the suppressionhearing supports the court's determination that the waiver by defendant of his Mirandarights was knowing, voluntary and intelligent. Although defendant contends that he wasintoxicated at the time he waived those rights, there is no indication in the record of thesuppression hearing that he " 'was intoxicated to the degree of mania, or of being unable tounderstand the meaning of his statements' " (People v Schompert, 19 NY2d 300, 305[1967], cert denied 389 US 874 [1967]; see People v Lake, 45 AD3d 1409, 1410 [2007], lv denied10 NY3d 767 [2008]).
In each appeal, defendant failed to preserve for our review his further contentions that hisplea was not knowingly, voluntarily and intelligently entered (see People v Johnson, 60 AD3d1496, 1496 [2009], lv denied 12 NY3d 926 [2009]), and that the plea allocution wasfactually insufficient (see People v Lopez, 71 NY2d 662, 665 [1988]; People vTapscott, 302 AD2d 918 [2003]). There is no indication in the record that the narrowexception to the preservation doctrine applies herein (see Lopez, 71 NY2d at 666). Byfailing to request a hearing or otherwise challenge the amount of restitution ordered atsentencing, defendant also failed to preserve for our review his contention in appeal No. 1 withrespect to the restitution ordered (seePeople v Melino, 52 AD3d 1054, 1056 [2008], lv denied 11 NY3d 791 [2008]).We decline to exercise our power to review defendant's contention with respect to the restitutionordered as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Finally, the sentence imposed in each appeal is not unduly harsh or severe.Present—Scudder, P.J., Fahey, Carni and Gorski, JJ.