| People v Merchant |
| 2010 NY Slip Op 09575 [79 AD3d 1526] |
| December 30, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brandon N.Merchant, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Columbia County (Czajka, J.), renderedSeptember 30, 2009, convicting defendant upon his plea of guilty of the crimes of burglary in thesecond degree and grand larceny in the second degree.
Upon his plea of guilty, defendant was convicted of burglary in the second degree and grandlarceny in the second degree for breaking into a residence and taking a safe containing a substantialamount of cash and other items. Defendant further executed an appeal waiver, but reserved his right toappeal the sentence if County Court imposed a sentence greater than the jointly recommended one of3½ years in prison, 2½ years of postrelease supervision, and restitution and a surchargetotaling $105,000. County Court thereafter sentenced defendant to an aggregate prison term of7½ to 15 years to be followed by five years of postrelease supervision, and imposed therecommended restitution and surcharge amount. Upon defendant's appeal, we affirm.
Initially, County Court did not abuse its discretion in denying defendant's application to pay therestitution component of his sentence at a later date (see CPL 420.10 [1] [a]; Penal Law§ 60.27 [3]). Defendant requested that he not be required to make restitution until a couple ofmonths after his release from prison, but provided no reasons for that request and did not assert that hewas unable to make payment at the time of sentencing. Indeed, County Court was not [*2]required to assess defendant's ability to pay in ordering restitution, as hisnonprobationary sentence included—as a significant component—a period ofincarceration (see People v Heier, 73AD3d 1392, 1393 [2010], lv denied 15 NY3d 805 [2010]; People v Henry, 64 AD3d 804,806-807 [2009], lv denied 13 NY3d 860 [2009]).
We also reject defendant's claim that the sentence imposed was harsh and excessive. Given hisprior criminal history and the nature of the crimes here, we perceive neither an abuse of discretion norextraordinary circumstances that would warrant a reduction in that sentence (see People v Murphy, 56 AD3d 951[2008], lv denied 12 NY3d 786 [2009]).
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment is affirmed.