| People v White |
| 2016 NY Slip Op 03917 [139 AD3d 1260] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTracy J. White Jr., Appellant. |
Frank A. Sarat, Homer, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Chemung County (RichJr., J.), rendered September 19, 2014, convicting defendant upon his plea of guilty of thecrimes of robbery in the second degree (four counts) and grand larceny in the thirddegree (three counts).
Defendant was charged by indictment with four counts of robbery in the seconddegree and three counts of grand larceny in the third degree. Without any promise havingbeen made as to the sentence to be imposed, defendant pleaded guilty as charged.Following a restitution hearing, County Court sentenced defendant to an aggregateprison term of 13 years, to be followed by five years of postrelease supervision, andordered him to pay restitution in the amount of $68,662, plus a five percent surcharge.Defendant appeals.
Initially, as the record does not reflect that he made an appropriate postallocutionmotion, defendant's challenge to the voluntariness of his plea is unpreserved (see People v Richardson, 132AD3d 1022, 1023 [2015]; People v Waite, 120 AD3d 1446, 1447 [2014]). Moreover,the narrow exception to the preservation rule was not triggered since defendant did notmake any statements during the plea allocution that cast doubt upon his guilt or otherwisecalled into question the voluntariness of his plea (see People v Lopez, 71 NY2d662, 666 [1988]; People vSpellicy, 123 AD3d 1228, 1230 [2014], lv denied 25 NY3d 992 [2015]).Similarly, in the absence of an objection at the time of sentencing, defendant failed topreserve his contention that County Court considered improper factors in imposingsentence (see People vColome-[*2]Rodriguez, 120 AD3d 1525,1525-1526 [2014], lv denied 25 NY3d 1161 [2015]; People v Rosado,300 AD2d 838, 840-841 [2002], lv denied 99 NY2d 619 [2003]; People vAnonymous, 293 AD2d 374, 374 [2002], lv denied 98 NY2d 729[2002]).
Lastly, defendant argues that County Court erred in ordering him to pay $19,149 inrestitution to Finger Lakes Healthcare Federal Credit Union to cover the cost of hiringarmed security guards for a period of roughly three months until certain physical securitymeasures could be installed. As relevant here, County Court "may require restitution orreparation as part of the sentence imposed upon a person convicted of an offense[ ] and. . . require the defendant to make restitution of the fruits of his or heroffense or reparation for the actual out-of-pocket loss caused thereby" (PenalLaw § 60.27 [1] [emphasis added]). The amount of restitution imposed"may be no greater than the sum necessary to compensate the victim for out-of-pocketlosses" (People v Consalvo, 89 NY2d 140, 144 [1996]; see People v Tzitzikalakis, 8NY3d 217, 220 [2007]; People v Ayers, 45 AD3d 1290, 1291 [2007], lvdenied 10 NY3d 808 [2008]). Here, while the credit union's decision to temporarilyhire security guards was likely motivated by the fact that defendant perpetrated two of hisoffenses against the same branch, we cannot conclude that this voluntary decisionconstituted an out-of-pocket loss caused by defendant's offenses (see Penal Law§ 60.27 [1]; Peoplev Nelson, 38 AD3d 472, 473 [2007], lv denied 9 NY3d 879 [2007]).Accordingly, the restitution award should be modified to $49,513, with a five percentsurcharge of $2,475.65, for a total award of $51,988.65.
Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur. Ordered that the judgmentis modified, on the law, by reducing the amount of restitution awarded to $49,513, with afive percent surcharge of $2,475.65, and, as so modified, affirmed.