| People v Deschaine |
| 2014 NY Slip Op 02812 [116 AD3d 1303] |
| April 24, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vThomas W. Deschaine, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered September 5, 2012, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the second degree.
In accordance with a plea agreement, defendant pleaded guilty to a superior courtinformation charging him with attempted burglary in the second degree and waived hisright to appeal the conviction and sentence. He was sentenced, as a second felonyoffender, to a prison term of four years to be followed by five years of postreleasesupervision. Following a restitution hearing, defendant was ordered to pay restitution anda surcharge totaling $4,069.69. Defendant now appeals.
Defendant argues that the amount of restitution is unsupported. Inasmuch as theunderlying plea agreement did not specify the restitution to be awarded, this contention isnot precluded by defendant's valid appeal waiver (see People v Smith, 100 AD3d 1102, 1102 [2012]). It is,nevertheless, without merit. One of the burglary victims testified as to the value of theitems that had been stolen or damaged by defendant and his accomplice and, in manycases, that testimony was supported by receipts. Moreover, for those items that had beeninherited or were gifts, the victim detailed how the value of those items was estimated byresearching the prices of similar items or consulting with the individuals who had giftedthe items. County Court [*2]was free to credit thisevidence, which formed an adequate basis for the amount of restitution awarded (see People v Ford, 77 AD3d1176, 1176-1177 [2010], lv denied 17 NY3d 816 [2011]; People v Shortell, 30 AD3d837, 837-838 [2006]).
Defendant's further challenge to the agreed-upon sentence as harsh and excessive isprecluded by his uncontested appeal waiver (see People v Wiley, 112 AD3d 998, 998 [2013]).Defendant also contends that he was improperly sentenced as a second felony offender.That argument is unpreserved for our review given his failure to object at sentencing and,in any event, the record demonstrates that County Court substantially complied with CPL400.21 in imposing the sentence (see People v Morse, 111 AD3d 1161, 1161 [2013]).
While the underlying judgment is therefore affirmed, the parties correctly identifyclerical errors in the order of restitution and the amended uniform sentence andcommitment form that require correction. In particular, the amended uniform sentenceand commitment form sets forth an incorrect amount of restitution. Moreover, neitherthat form nor the order of restitution reflect that defendant and his accomplice are jointlyand severally liable for the payment of the restitution award. We thus remit so thatCounty Court may make appropriate amendments to those documents.
Stein, Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, andmatter remitted for entry of both an amended uniform sentence and commitment formand an amended order directing restitution and payment of surcharges.