| People v Bibeau |
| 2016 NY Slip Op 05189 [140 AD3d 1530] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMarcel A. Bibeau Jr., Appellant. |
Marcy I. Flores, Warrensburg, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Mulvey, J. Appeals (1) from a judgment of the County Court of Clinton County(McGill, J.), rendered May 14, 2014, convicting defendant upon his plea of guilty of thecrime of grand larceny in the fourth degree (two counts), and (2) from an order of saidcourt, entered March 25, 2015, denying defendant's motion seeking deferral ofmandatory surcharges, fees and restitution.
In 2013, defendant was the subject of three accusatory instruments, the first of whichcharged him with the crime of grand larceny in the third degree for having stolen fromhis employer automotive and marine electronic equipment valued in excess of $4,544.30(see Penal Law § 155.35 [1]). The other two instruments chargeddefendant with the crimes of grand larceny in the third degree and offering a falsestatement for filing in the first degree in connection with defendant's receipt from theDepartment of Social Services of over $3,000 in public assistance benefits to which hewas not entitled (see Penal Law §§ 155.35 [1]; 175.35 [1]).Defendant waived prosecution by indictment and, in full satisfaction of the chargesbrought against him in two separate superior court informations, pleaded guilty in March2014 to two counts of grand larceny in the fourth degree. At sentencing, defendantsought to have the payment of the mandatory surcharges deferred until after he served hissentence. County Court denied that request and, consistent with the terms of theunderlying plea agreement, sentenced defendant as an admitted second felony offender toconcurrent prison terms of 1
We affirm. Initially, we note that defendant's failure to move to withdraw his guiltyplea or to vacate the judgment of conviction renders his claims that his plea wasinvoluntarily entered and that his plea allocution was factually inadequate unpreservedfor our review (see People vWilliams, 27 NY3d 212, 219-220 [2016]; People v Lopez, 71 NY2d662, 665 [1988]; People vYoungblood, 107 AD3d 1159, 1160 [2013], lv denied 21 NY3d 1078[2013]; People v Bonville,104 AD3d 1024, 1024 [2013], lv denied 22 NY3d 1197 [2014]). Moreover,the narrow exception to the preservation rule does not apply here as defendant did notmake any statements during his plea allocution that cast doubt upon his guilt or thevoluntariness of his plea (see People v Williams, 27 NY3d at 220; People vLopez, 71 NY2d at 666-667). If this issue were properly before us, we would findthat the record establishes that, although defendant admitted his guilt when asked for hisplea to "the charge of grand larceny in the third degree as set forth in the first count"alleging theft of public assistance benefits, both the plea agreement and plea colloquyunequivocally demonstrate that defendant agreed to plead guilty to grand larceny in thefourth degree. Moreover, at sentencing, County Court confirmed that defendant wasbeing sentenced for his guilty pleas to two counts of grand larceny in the fourth degree.The record further establishes that an amended uniform sentence and commitment formwas filed in July 2014 correctly indicating that defendant had pleaded guilty to grandlarceny in the fourth degree.
With regard to defendant's contention that County Court erred in denying his requestto defer the payment of the mandatory surcharges prior to imposing sentence, defendantdid not sufficiently demonstrate that the payment of the surcharge "would work anunreasonable hardship on defendant over and above the ordinary hardship suffered byother indigent inmates" (Peoplev Flanders, 110 AD3d 1112, 1112 [2013] [internal quotation marks andcitations omitted]; see CPL 420.40 [2]; People v Larose, 120 AD3d 1442, 1443 [2014], lvdenied 24 NY3d 1045 [2014]).
Inasmuch as defendant requests deferral of the payment of restitution, neither CPL420.40 nor the issuance of a civil judgment expressly permit deferral of the payment ofrestitution (see CPL 420.40 [1]; 420.10 [6]; but see People v Greenhalgh, 48 Misc 3d 755, 758-759[County Ct, Nassau County 2015]; People v Morrison, 36 Misc 3d 880, 888 and n 3 [Sup Ct,NY County 2012]). Nor has defendant demonstrated that County Court abused itsdiscretion in denying defendant's request to defer payment of the restitution componentof his sentence (see CPL 420.10 [1] [a]; Penal Law § 60.27 [3]; People v Merchant, 79 AD3d1526, 1526 [2010]; seegenerally People v Henry, 64 AD3d 804, 807 and n 2 [2009], lv denied13 NY3d 860 [2009]).
Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment andorder are affirmed.