| People v Disotell |
| 2014 NY Slip Op 08674 [123 AD3d 1230] |
| December 11, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichelle A. Disotell, Appellant. |
John A. Cirando, Syracuse, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Rose, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered November 20, 2012, convicting defendant upon her plea ofguilty of the crimes of welfare fraud in the third degree and criminal possession of aforged instrument in the second degree (three counts).
In satisfaction of a 55-count indictment and other pending charges, defendantpleaded guilty to welfare fraud in the third degree and three counts of criminalpossession of a forged instrument in the second degree and purportedly waived her rightto appeal.[FN1] Theplea agreement contemplated that defendant would receive an aggregate probationsentence of five years if she successfully completed the Judicial Diversion Program and aterm of imprisonment if she did not. Defendant was thereafter charged with violating theterms of that program in multiple respects, and was terminated from the program afterwaiving her right to a hearing and admitting to the charges (see CPL 216.05 [9]).County Court imposed the agreed-upon aggregate prison sentence of 4 to 8 years, andfurther ordered defendant to pay restitution. County Court was then incorrectly advisedthat it had sentenced defendant to a count of the indictment to which she had not pleadedguilty and, five days later, resentenced her. [*2]Defendantnow appeals.[FN2]
Defendant's challenge to the voluntariness of her plea is unpreserved due to herfailure to seek appropriate postallocution relief (see People v Fate, 117 AD3d 1327, 1328 [2014]). Contraryto defendant's further contention, her "affirmative and unequivocal responses to CountyCourt's inquiry did not otherwise signal doubt regarding [her] guilt or the voluntarinessof [her] plea" such as to bring this case within the narrow exception to the preservationrequirement (People vThreatt, 16 AD3d 706, 707 [2005]; see People v Aubrey, 73 AD3d 1393, 1394 [2010], lvdenied 16 NY3d 893 [2011]).
Although defendant next argues that County Court abused its discretion interminating her from the Judicial Diversion Program, she admitted to violating the termsof the program in return for a specified sentence and her failure to attack that agreementbefore County Court leaves the issue unpreserved (see People v Cooney, 120 AD3d 1445, 1446 [2014]). Herchallenge to the amount of restitution as lacking record support is similarly unpreserved,as she was aware that restitution would be a component of the sentence and failed torequest a restitution hearing or otherwise dispute the amount of the award at sentencing(see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v White, 119 AD3d1286, 1287 [2014]). The record, moreover, provides no compelling reason for us toexercise our jurisdiction to reverse or modify in the interest of justice with regard toeither issue.
As a final matter, defendant pleaded guilty to counts 1, 8, 38 and 48 of theindictment. County Court resentenced her, however, on counts 1, 8, 38 and 40. Inasmuchas County Court failed to pronounce sentence upon each of the counts to whichdefendant pleaded guilty, remittal for resentencing is necessary (see CPL 380.20;People v Sturgis, 69 NY2d 816, 817-818 [1987]; People v Volfson, 69 AD3d1123, 1125 [2010]).
Peters, P.J., Lahtinen and Lynch, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of St.Lawrence County for resentencing; and, as so modified, affirmed.
Footnote 1:The People correctlyconcede that defendant's appeal waiver is invalid (see People v Villnave, 117 AD3d 1178, 1178 n [2014]).
Footnote 2:The amended "notice ofappeal misstates the date upon which the judgment was rendered, [but] we exercise ourdiscretion to overlook the inaccuracy and treat the notice as valid" (People v Pittman, 119 AD3d1242, 1242 n [2014]; see CPL 460.10 [6]).