| People v Spossey |
| 2013 NY Slip Op 04149 [107 AD3d 1420] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DebraSpossey, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered January 4, 2010. The judgment convicted defendant, upon her plea of guilty, ofgrand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, following a pleaof guilty, of grand larceny in the fourth degree (Penal Law § 155.30 [1]). We agreewith defendant that her waiver of the right to appeal was not knowingly, intelligently,and voluntarily entered (seePeople v Bradshaw, 18 NY3d 257, 262 [2011]; see generally People v Lopez,6 NY3d 248, 256 [2006]); thus, it does not encompass defendant's contentions thatthe award of restitution was not based on evidence in the record and that County Courtshould have held a hearing with respect to the amount of restitution (cf. People v Tessitore, 101AD3d 1621, 1622 [2012], lv denied 20 NY3d 1104 [2013]). Defendant,however, failed to preserve for our review those contentions inasmuch as she did notobject to the amount of restitution at sentencing, nor did she request a hearing (seeid.; People v Lewis, 89AD3d 1485, 1486 [2011]). In any event, defendant conceded "the facts necessary toestablish the amount of restitution as part of a plea allocution" (People vConsalvo, 89 NY2d 140, 145 [1996]) and thus waived her right to challenge theamount of restitution. Even assuming, arguendo, that defendant's contention with respectto ineffective assistance of counsel survives the guilty plea (see generally People v March,21 AD3d 1393, 1393 [2005], lv denied 6 NY3d 778 [2006]), we furtherconclude that defendant was not denied effective assistance of counsel by defensecounsel's failure to challenge the amount of restitution (see generally People vFord, 86 NY2d 397, 404 [1995]). Present—Centra, J.P., Fahey, Carni, Whalenand Martoche, JJ.