| People v Aucter |
| 2011 NY Slip Op 04834 [85 AD3d 1551] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Steven L. Aucter, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedNovember 12, 2009. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of marihuana in the second degree, criminal possession of stolen property in the thirddegree, criminal possession of a weapon in the fourth degree, possession of burglar's tools,resisting arrest and criminal possession of a controlled substance in the seventh 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 of,inter alia, criminal possession of stolen property in the third degree (Penal Law § 165.50)and possession of burglar's tools (§ 140.35). Defendant contends that County Court erredin imposing restitution in the amount of $21,000 without conducting a restitution hearingpursuant to Penal Law § 60.27 (2). We reject that contention. Indeed, the record establishesthat the court did not impose restitution but, instead, defendant agreed in writing to forfeit thefunds in question to the Cayuga County District Attorney's Office pursuant to CPLR article 13-A(see People v Concepcion, 188 AD2d 483 [1992]). In any event, even assuming,arguendo, that the funds constituted restitution, we conclude that defendant failed to preserve hiscontention for our review " 'inasmuch as he failed to object to the amount of restitution atsentencing or to request a hearing with respect thereto' " (People v Wright, 79 AD3d 1789, 1790 [2010]; see People v Hannig, 68 AD3d1779, 1780 [2009], lv denied 14 NY3d 801 [2010]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Present—Scudder, P.J., Fahey, Carni, Green and Gorski, JJ.