| People v Kosty |
| 2014 NY Slip Op 08176 [122 AD3d 1408] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDiana Kosty, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Valerie G. Gardner, District Attorney, Penn Yan (Megan P. Dadd of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), renderedNovember 13, 2012. The judgment convicted defendant, upon her plea of guilty, ofoffering a false instrument for filing in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea ofguilty of offering a false instrument for filing in the first degree (Penal Law§ 175.35). Defendant contends that her waiver of the right to appeal wasinvalid because County Court did not explain exceptions to the waiver. We reject thatcontention (see People vCorbin, 121 AD3d 803 [2014]). Defendant's contention that she did not admit tothe element of intent to defraud during her plea is actually a challenge to the factualsufficiency of the plea allocution, and that challenge is encompassed by her valid waiverof the right to appeal (seePeople v Gardner, 101 AD3d 1634, 1634 [2012]; People v Bailey, 49 AD3d1258, 1259 [2008], lv denied 10 NY3d 932 [2008]). In any event, defendantfailed to preserve her contention for our review inasmuch as she failed to move towithdraw the plea or to vacate the judgment of conviction (see People v Lewandowski, 82AD3d 1602, 1602 [2011]), and this case does not fall within the "rare exception tothe preservation rule" (People v Lopez, 71 NY2d 662, 666 [1988]).
Defendant's valid waiver of the right to appeal also encompasses her contention thatthe court erred in directing her to pay a specified amount of restitution withoutconducting a hearing "inasmuch as that amount was an explicit part of defendant'sagreed-upon plea bargain" (People v Taylor, 70 AD3d 1121, 1122 [2010], lv denied14 NY3d 845 [2010]; seePeople v Wapniewski, 115 AD3d 1251, 1251-1252 [2014], lv denied 23NY3d 1026 [2014]). In any event, defendant failed to preserve her contention for ourreview by challenging the court's determination as to the amount of restitution or byrequesting a hearing on the issue (see People v Giovanni, 53 AD3d 778, 778-779 [2008],lv denied 11 NY3d 832 [2008]). Defendant also failed to preserve for our reviewher contention that the court erred in imposing a collection surcharge of 10% of theamount of restitution (see CPL 470.05 [2]; People v Kirkland, 105 AD3d 1337, 1338 [2013], lvdenied 21 NY3d 1043 [2013]). We decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [3][c]). Present—Scudder, P.J., Smith, Peradotto, Carni and Sconiers, JJ.