| People v Camp |
| 2015 NY Slip Op 09536 [134 AD3d 1470] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKevin M. Camp, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.),rendered February 6, 2013. The judgment convicted defendant, upon his plea of guilty,of rape in the first degree and disseminating indecent material to minors in the seconddegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of rape in the first degree (Penal Law § 130.35 [4]) and two counts ofdisseminating indecent material to minors in the second degree (§ 235.21[3]). Defendant failed to move to withdraw his plea or to vacate the judgment ofconviction, and he therefore failed to preserve for our review his contention that the pleawas improperly entered (seePeople v McNair, 13 NY3d 821, 822 [2009]; People v Lopez, 71 NY2d662, 665 [1988]; People vPitcher, 126 AD3d 1471, 1472 [2015], lv denied 25 NY3d 1169 [2015]).This case does not fall into the "rare exception to the preservation requirement set forthin Lopez because nothing in the plea allocution calls into question thevoluntariness of the plea or casts 'significant doubt' upon his guilt" (Pitcher, 126AD3d at 1472). Defendant waived his right to a hearing on restitution and thereforefailed to preserve for our review his contention that County Court erred in itsdetermination of the amount of restitution (see People v Miller, 87 AD3d 1303, 1304 [2011], lvdenied 18 NY3d 926 [2012]; People v Roots, 48 AD3d 1031, 1032 [2008]). We declineto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see Miller, 87 AD3d at 1304). Defendant also failed to preserve for ourreview his contention that the court erred in imposing a collection surcharge of 10%,rather than 5%, of the amount of restitution, and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see People v Kosty, 122 AD3d1408, 1409 [2014], lv denied 24 NY3d 1220 [2015]; People v Kirkland, 105 AD3d1337, 1338-1339 [2013], lv denied 21 NY3d 1043 [2013]).
Defendant next contends that the court did not comply with CPL 400.15 insentencing him as a second violent felony offender. Defendant failed to preserve thatcontention for our review (seePeople v Judd, 111 AD3d 1421, 1423 [2013], lv denied 23 NY3d 1039[2014]; see also People vLoper, 118 AD3d 1394, 1395 [2014], lv denied 25 NY3d 1204 [2015])and, in any event, it lacks merit. Although the court misspoke when it asked defendant ifhe was a second felony offender rather than a second violent felony offender, the Peoplefiled a second violent felony offender statement pursuant to CPL 400.15 (2). In addition,defendant was asked, and he admitted, that he was convicted of the prior offense, whichwas a violent felony (see CPL 400.15 [3]). We thus conclude that there wassubstantial compliance with CPL 400.15 (see People v Myers, 52 AD3d 1229, 1230 [2008]). To theextent that defendant's contention that he was denied effective assistance of counselsurvives his plea of guilty (seePeople v Robinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869[2007]), we reject that contention. The record establishes that defendant received "anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness ofcounsel" (People v Ford, 86 NY2d 397, 404 [1995]; see People v Arney, 120 AD3d949, 950 [2014]). Finally, the [*2]sentence is notunduly harsh or severe. Present—Scudder, P.J., Smith, Centra, Peradotto andCarni, JJ.