| People v Ortolaza |
| 2014 NY Slip Op 05664 [120 AD3d 843] |
| August 7, 2014 |
| Appellate Division, Third Department |
[*1](August 7, 2014)
| The People of the State of New York,Respondent, v Abner Ortolaza, Appellant. |
Neal D. Futerfas, White Plains, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered July 11, 2012, which resentenced defendant following his conviction of thecrime of burglary in the third degree.
Defendant waived indictment and agreed to be prosecuted by a superior courtinformation charging him with burglary in the third degree. He pleaded guilty to thiscrime and waived his right to appeal. Under the terms of the plea agreement, he was to besentenced to 3 to 6 years in prison and ordered to pay restitution in the amount requestedby the District Attorney. Thereafter, County Court sentenced defendant to theagreed-upon prison term and, among other things, ordered him to pay restitution in theamount of $976. When it was later determined that the prison term imposed wasillegal,[FN*] CountyCourt resentenced defendant to 2 to 6 years in prison, but directed him to pay the sameamount of restitution as previously ordered. Defendant now appeals.
Defendant challenges County Court's award of restitution, claiming that there is norecord support for the amount that he was ordered to pay. Although defendant is notprecluded by his waiver of appeal from raising this claim because the plea agreement didnot specify the [*2]amount of restitution to be awarded(see People v Boone, 101AD3d 1358, 1358 [2012], lv denied 20 NY3d 1096 [2013]; People v Sherman, 91 AD3d982, 983 [2012], lv denied 19 NY3d 867 [2012]), it is not preserved for ourreview given that he did not request a restitution hearing or otherwise object to theamount of restitution awarded at sentencing (see People v Smith, 112 AD3d 1232, 1233 [2013], lvdenied 22 NY3d 1203 [2014]; People v Bressard, 112 AD3d 988, 989 [2013], lvdenied 22 NY3d 1137 [2014]). Under the circumstances presented, we find noreason to take corrective action in the interest of justice (see People v Rossborough, 100AD3d 1149 [2012]; Peoplev Naumowicz, 76 AD3d 747, 748 [2010]). Furthermore, we reject defendant'sclaim that he should not have been ordered to pay the mandatory surcharge or crimevictim assistance fee given the absence of proof that he actually paid the restitutionawarded (see Penal Law § 60.35 [6]; People v Quinones, 95NY2d 349, 352 [2000]). Therefore, we decline to disturb the judgment ofconviction.
Peters, P.J., Stein, McCarthy, Rose and Devine, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:Defendant was given anopportunity to withdraw his plea, but declined.