| People v Lewis |
| 2014 NY Slip Op 01091 [114 AD3d 1310] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Joel A. Lewis, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered December 1, 2011. The judgment convicted defendant, upon his plea of guilty,of burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon a plea of guilty of burglary in thesecond degree (Penal Law § 140.25 [2]), and was sentenced to a determinate termof incarceration of seven years with five years of postrelease supervision. He was alsoordered to pay restitution in the amount of $1,102.50. On defendant's appeal from thatjudgment of conviction, we modified the judgment by vacating the sentence on thegrounds that restitution had not been part of the plea agreement and that "the record[was] devoid of any evidence supporting the amount of restitution that defendant wasrequired to pay" (People vLewis, 89 AD3d 1485, 1486 [2011]). We remitted the matter to County Court"to impose the sentence promised or to afford defendant the opportunity to move towithdraw his plea" (id.).
On remittal, the court afforded defendant the opportunity to withdraw his guilty plea,which he declined to do. Rather, defendant advised the court that he was "choosing to besentenced to the sentence promised," which did not include restitution. The court,however, determined that it could not impose the sentence promised at the time that theplea was entered because the People had requested restitution, which they were entitledto do "at or before the time of sentencing" (Penal Law § 60.27 [1]; see People v Naumowicz, 76AD3d 747, 749 [2010]; see generally People v Horne, 97 NY2d 404,410-412 [2002]). The court therefore vacated defendant's plea over his objection. Afterconferring with defense counsel, defendant again pleaded guilty to burglary in the seconddegree in exchange for the previously agreed-upon sentence, i.e., a determinate term ofincarceration of seven years and five years of postrelease supervision, but with theaddition of restitution in the amount of $1,102.50.
On appeal from the ensuing judgment of conviction, defendant contends that hisguilty plea was not knowingly, voluntarily, and intelligently entered. That contention isunpreserved for our review inasmuch as defendant did not move to withdraw the plea orto vacate the judgment of conviction on that ground (see People v Lugg, 108 AD3d 1074, 1075 [2013]; People v Sherman, 8 AD3d1026, 1026 [2004], lv denied 3 NY3d 681 [2004]). In any event, it iswithout merit. The record establishes that defendant's plea was knowingly, voluntarily,and intelligently entered even though some of defendant's responses to the court'sinquiries were monosyllabic (see People v VanDeViver, 56 AD3d 1118, 1118 [2008],lv denied 11 NY3d 931 [2009], reconsideration denied 12 NY3d 788[2009]; cf. People v Brown,41 AD3d 1234, 1234 [2007], lv denied 9 NY3d 873 [2007]), and furtherestablishes that " 'defendant was rational and coherent during the entire plea proceeding'" (VanDeViver, 56 AD3d at 1118; see generally People v Knoxsah, 94 AD3d 1505,1505-1506 [2012]).[*2]
Defendant's challenge to the amount ofrestitution is likewise unpreserved for our review inasmuch as he "did not request ahearing to determine the [proper amount of restitution] or otherwise challenge theamount of restitution order[ed] during the sentencing proceeding" (People v Jones, 108 AD3d1206, 1207 [2013] [internal quotation marks omitted]; see People v Aucter, 85 AD3d1551, 1552 [2011], lv denied 18 NY3d 922 [2012]). Indeed, defendantexpressly consented to the amount of restitution twice during the plea colloquy (see People v Brown, 70 AD3d1378, 1379 [2010]; People v McElrath, 241 AD2d 932, 932 [1997]). Wefurther note that the present record contains evidence supporting the amount ofrestitution ordered, i.e., a victim impact statement included in the presentence report, andsupporting documentation from the victims' insurance carrier (see People v LaVilla, 87 AD3d1369, 1370 [2011]; McElrath, 241 AD2d at 932; cf. Lewis, 89AD3d at 1485). We therefore see no basis to disturb the amount of restitution ordered.Present—Scudder, P.J., Fahey, Peradotto, Carni and Valentino, JJ.