| People v Morse |
| 2013 NY Slip Op 07880 [111 AD3d 1161] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jay H.Morse, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Sandra L. Cardone of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered March 28, 2012, convicting defendant upon his plea of guilty of the crime offorgery in the second degree.
Defendant, at all times represented by counsel, executed a waiver of indictment andpleaded guilty to one count of forgery in the second degree contained in a superior courtinformation. This charge stemmed from defendant's conduct in October 2011 in falselymaking two checks, each in the amount of $485.72. Defendant admitted that he createdthe checks with a computer, using the name of a fictitious business, and made thempayable to an acquaintance who agreed to share the proceeds with him and who, in fact,cashed them. The plea, executed pursuant to a negotiated agreement, also satisfied aviolation of probation petition (his probation related to a prior plea to grand larcenyinvolving the same victim), as well as other pending charges for cashing false payrollchecks at another business. Defendant was later sentenced, as a second felony offender,to the agreed-upon prison term of 3½ to 7 years, with surcharges. Defendant nowappeals.
We affirm. Defendant's primary contention, that he was improperly sentenced as asecond felony offender, is unpreserved for our review as he failed to object at sentencing(see People v Gathers, 106AD3d 1333, 1333-1334 [2013], lv denied 21 NY3d 1073 [2013]; People v [*2]Walton, 101 AD3d 1489, 1490 [2012], lvdenied 20 NY3d 1105 [2013]). In any event, the record reflects that at a post-pleaappearance 12 days before sentencing, defendant was in possession of a copy of thepredicate felony statement and expressly declined to controvert the allegations or tocontest the legality of the conviction (see People v Smith, 73 NY2d 961, 962[1989]); defendant was given an opportunity to be heard and admitted that he had beenpreviously convicted as described in the predicate felony statement. Defendant was thenadjudicated to be a second felony offender. At sentencing, defendant raised no challengeto that adjudication, to the prior conviction or to being so sentenced, and did not move towithdraw his plea. The foregoing constituted substantial compliance with therequirements of CPL 400.21 (see People v Gathers, 106 AD3d at 1334; People v Glynn, 72 AD3d1351, 1351 [2010], lv denied 15 NY3d 773 [2010]). Moreover, no violationof the statute occurred attributable to County Court posing some questions—inopen court—to defense counsel rather than to defendant directly (see People v Califano, 84AD3d 1504, 1506-1507 [2011], lv denied 17 NY3d 805 [2011]).
Finally, as the record does not reflect that defendant made any restitution in this case,the mandatory surcharge and crime victim assistance fee were properly ordered (seePeople v Quinones, 95 NY2d 349, 352 [2000]; cf. Penal Law § 60.35[1] [a] [i]; [6]). The $930 in cash, of which defendant was in possession at the time of hisprior arrest on grand larceny charges, which he agreed—as part of thisplea—to forfeit and apply toward the substantial restitution due in that prior case,was not restitution in this case. As defendant points out, however, County Court waivedthe DNA fee ($50), which is not accurately reflected in the amended uniform sentenceand commitment form submitted by the People on appeal, which should be amendedaccordingly. Defendant's remaining arguments are not meritorious.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, and matter remitted for entry of an amended uniform sentence and commitmentform.