| People v Briglin |
| 2015 NY Slip Op 01353 [125 AD3d 1518] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTodd R. Briglin, Appellant. (Appeal No. 1.) |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.),rendered January 3, 2013. The judgment convicted defendant, upon his plea of guilty, ofburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from judgments rendered on the same day,convicting him upon his pleas of guilty of burglary in the third degree (Penal Law§ 140.20). As defendant contends and the People correctly concede, thewaiver of the right to appeal in each appeal is invalid because, "[a]lthough the recordestablishes that defendant executed a written waiver of the right to appeal, there was nocolloquy between County Court and defendant regarding the waiver of the right to appealto ensure that it was knowingly, voluntarily and intelligently entered" (People v Carno, 101 AD3d1663, 1664 [2012], lv denied 20 NY3d 1060 [2013]).
Defendant contends that the court erred in its determination of restitution withrespect to the victims in each appeal. At sentencing, the People indicated that the amountof restitution was $905.02 based on two victim impact statements, but if there wereadditional victims seeking restitution the matter should be scheduled for a hearing.Defendant objected to any additional amounts of restitution and agreed to the People'ssuggestion that a hearing be held if there were additional amounts sought. The courtbifurcated the sentencing proceeding by severing the issue of restitution for a hearing, ifnecessary. Several months later, the court issued an order of restitution in the amount of$905.02. Defendant failed to appeal from the order of restitution (see People v Connolly, 100AD3d 1419, 1419 [2012]; People v Brusie, 70 AD3d 1395, 1396 [2010]), however,and thus his challenge to the amount of restitution is not before us. We note in any eventthat defendant failed to preserve his challenge for our review (see People vHorne, 97 NY2d 404, 414 n 3 [2002]; People v Jorge N.T., 70 AD3d 1456, 1457 [2010], lvdenied 14 NY3d 889 [2010]), inasmuch as he did not object to the amount of$905.02 stated at sentencing or request a hearing with respect thereto. Even if defendanthad appealed from the order of restitution, we would decline to exercise our power toreview that challenge as a matter of discretion in the interest of justice (see CPL470.15 [3] [c]; People v MarcoA.C., 115 AD3d 1219, 1220 [2014], lv denied 23 NY3d 1039[2014]).
Finally, the sentence in each appeal is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Carni, Sconiers and DeJoseph, JJ.