| People v Moore |
| 2015 NY Slip Op 00142 [124 AD3d 1386] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKurt Moore, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered July 6, 2011. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the postsentence restitution order and as modified the judgment isaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant challenges County Court's imposition of restitution. Initially, we notethat, although an order of restitution is not as a general rule appealable (see CPL450.10; People vFricchione, 43 AD3d 410, 411 [2007]), "we deem the postsentence restitutionorder[ ] here to be [an] amendment[ ] to the judgment of conviction, [and thus] ourreview of such order[ ] is appropriate" upon defendant's appeal from the judgment ofconviction (People vNaumowicz, 76 AD3d 747, 749 n 1 [2010]). Furthermore, as the Peoplecorrectly concede, defendant's contention that the court had no authority to imposerestitution under these circumstances is a challenge to the legality of the sentence, andthus survives his waiver of the right to appeal (see People v Taylor, 242 AD2d925, 926 [1997]).
With respect to the merits, as the People again correctly concede, the court erred inimposing restitution arising from a charge of criminal possession of a forged instrumentbecause that charge was not contained in the indictment, nor was it related to an offensethat was "part of the same criminal transaction or . . . contained in any otheraccusatory instrument disposed of by" defendant's plea of guilty to the offense on appeal(Penal Law § 60.27 [4] [a]; see People v Diola, 299 AD2d 962, 962[2002], lv denied 99 NY2d 581 [2003]; cf. People v Brady, 59 AD3d 748, 749 [2009]). Wetherefore modify the judgment by vacating the order of restitution.Present—Smith, J.P., Fahey, Whalen and DeJoseph, JJ.