| People v Faso |
| 2011 NY Slip Op 02162 [82 AD3d 1584] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey F.Faso, Appellant. |
—[*1] Jeffrey F. Faso, defendant-appellant pro se.
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.), renderedJanuary 7, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofburglary in the second degree (Penal Law § 140.25 [2]). Defendant's contention thatCounty Court erred in failing to offer him the opportunity to withdraw his guilty plea prior toenhancing the sentence is not preserved for our review (see People v VanDeViver, 56 AD3d 1118 [2008], lv denied11 NY3d 931 [2009], reconsideration denied 12 NY3d 788 [2009]; People vPerry, 252 AD2d 990 [1998], lv denied 92 NY2d 929 [1998]). In any event, thatcontention lacks merit. Defendant violated the plea agreement by failing to comply with theconditions thereof, and thus the court "was no longer bound by the plea promise and couldproperly impose an enhanced sentence" (People v Figgins, 87 NY2d 840, 841 [1995];see VanDeViver, 56 AD3d 1118; see also People v Gibson, 52 AD3d 1227 [2008]). Defendant'sfurther contention that his plea was not knowingly, intelligently and voluntarily entered isactually a challenge to the factual sufficiency of the plea allocution (see People v Bullock, 78 AD3d1697 [2010]). That challenge is not preserved for our review (see People v Broadwater, 69 AD3d643 [2010], lv denied 14 NY3d 798 [2010]), and it does not fall within the narrowexception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666[1988]). In any event, that challenge is without merit inasmuch as the plea allocution was notrendered factually insufficient by defendant's monosyllabic responses to the court's inquiries (see People v Morris, 78 AD3d1613 [2010]).
Defendant failed to preserve for our review his contention in his main and pro sesupplemental briefs that the court was required to conduct a hearing with respect to the amountof restitution inasmuch as he neither requested such a hearing nor objected to the amount ofrestitution at sentencing (see People vWright, 79 AD3d 1789 [2010]; see generally People v Horne, 97 NY2d 404,414 n 3 [2002]). In any event, defendant waived that contention because he stipulated to theamount of restitution (see Wright, 79 AD3d 1789). To the extent that defendant'scontention in his main brief that he was denied effective assistance of counsel survives the plea(see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), we conclude that it is lacking in merit(see generally People v Ford, 86 NY2d 397, 404 [1995]). The sentence is not undulyharsh or severe. [*2]Finally, defendant's contention in his pro sesupplemental brief that the People failed to honor the executed plea agreement involves mattersoutside the record on appeal and thus is not properly before us (see generally People v Egan, 6 AD3d1206 [2004], lv denied 3 NY3d 639 [2004]). Present—Smith, J.P., Fahey,Carni, Sconiers and Martoche, JJ.