| People v Keenum |
| 2012 NY Slip Op 08766 [101 AD3d 1045] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael B. Keenum, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.),rendered August 17, 2011, convicting him of robbery in the first degree, upon his plea of guilty,and imposing sentence.
Ordered that the judgment is affirmed.
Where the plea minutes do not indicate that a plea of guilty was negotiated with terms thatincluded restitution, at sentencing, the defendant should be given an opportunity either towithdraw his plea or to accept the addition of restitution to his negotiated sentence (see People v Ortega, 61 AD3d705, 706 [2009]; People vKegel, 55 AD3d 625 [2008]; People v Henderson, 44 AD3d 873, 874 [2007]). Here, althoughthe plea minutes do not indicate that the defendant's plea of guilty was negotiated with terms thatincluded restitution, at sentencing, the defendant expressly indicated on the record that he wantedto pay even more than the amount of restitution requested. Accordingly, the defendant waived hiscontention that his guilty plea should be vacated because he was not advised of the terms ofrestitution prior to entering his plea (seePeople v Gibson, 88 AD3d 1012, 1012-1013 [2011]; People v Faso, 82 AD3d 1584, 1585 [2011]; People vLugo, 191 AD2d 648 [1993]).
The defendant's contention that the County Court failed to inquire about a potentialintoxication defense based upon certain post-plea assertions made by him is unpreserved forappellate review (see People vModesto, 39 AD3d 567 [2007]; People v Harrell, 288 AD2d 489 [2001];People v Sierra, 256 AD2d 598, 599 [1998]). Moreover, the rare case exception to thepreservation requirement is not applicable (see People v Lopez, 71 NY2d 662, 666[1988]; People v Modesto, 39 AD3d at 567; People v Cooper, 34 AD3d 827 [2006]). In any event, thedefendant's assertions do not warrant vacating his plea (see People v Dixon, 29 NY2d 55,57 [1971]; People v Gibson, 95AD3d 1033, 1033-1034 [2012]; People v Dazzo, 92 AD3d 796 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.