| People v Willis |
| 2013 NY Slip Op 02901 [105 AD3d 1397] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRodney W. Willis, Jr., Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), renderedDecember 8, 2008. The order directed defendant to pay restitution.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: On appeal from an order requiring him to pay restitution in theamount of $141,750, defendant contends that County Court erred in failing to conduct ahearing on the issue of his ability to pay restitution. Defendant failed to preserve thatcontention for our review (seePeople v Dillon, 90 AD3d 1468, 1468-1469 [2011], lv denied 19 NY3d1025 [2012]). In any event, we conclude that it lacks merit. "Consideration of defendant'sability to pay was not required because restitution was ordered as part of anonprobationary sentence that included a period of incarceration as a significantcomponent" (People v Ford,77 AD3d 1176, 1177 [2010], lv denied 17 NY3d 816 [2011]; see People v Henry, 64 AD3d804, 807 [2009], lv denied 13 NY3d 860 [2009]). We thus reject defendant'sfurther contention that he received ineffective assistance of counsel based on defensecounsel's failure to request a hearing on defendant's ability to pay restitution. Defensecounsel was not ineffective for failing to request a hearing that had no "colorable basis"(People v Rivera, 71 NY2d 705, 709 [1988]; see Ford, 77 AD3d at1177). Present—Centra, J.P., Fahey, Carni, Sconiers and Martoche, JJ.