| People v Brown |
| 2014 NY Slip Op 07700 [122 AD3d 1006] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJessica Brown, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Franklin County (MainJr., J.), rendered December 10, 2012, convicting defendant upon her plea of guilty of thecrimes of criminal possession of a criminal substance in the third degree (three counts)and criminal sale of a controlled substance in the third degree.
In 2012, defendant was charged in two indictments with crimes related to narcoticpossession and sale. Following the denial of her application requesting judicial diversionto a substance abuse treatment program, defendant pleaded guilty to one count ofcriminal sale of a controlled substance in the third degree and three counts of criminalpossession of a controlled substance in the third degree in full satisfaction of bothindictments. Defendant also waived her right to appeal all challenges other thanconstitutional issues or a violation of County Court's sentencing commitment inconnection with the plea. Thereafter, in accord with the plea agreement, defendant wassentenced to an aggregate term of five years in prison to be followed by two years ofpostrelease supervision. County Court also directed defendant to pay restitution in theamount of $430, along with a 10% collection surcharge. Defendant appeals, and weaffirm.
Defendant's valid waiver of her right to appeal precludes her claim that County Court[*2]should have granted her application for judicialdiversion (see People vSmith, 112 AD3d 1232, 1232 [2013], lv denied 22 NY3d 1203 [2014];People v Roche, 106 AD3d1328, 1329 [2013]). Although her waiver does not preclude her challenge to theamount of restitution to be awarded, inasmuch as the plea agreement did not specify theamount or if restitution would definitely be awarded (see People v Ortolaza, 120 AD3d 843, 844 [2014]; People v Lyman, 119 AD3d968, 970 [2014]), the issue is unpreserved because defendant did not request ahearing or otherwise challenge the award of restitution at sentencing, and correctiveaction in the interest of justice is unwarranted (see People v Ortolaza, 120 AD3dat 844; People v Smith, 112AD3d 1232, 1233 [2013], lv denied 22 NY3d 1203 [2014]).
Peters, P.J., Garry, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed.