| People v M&M Med. Transp., Inc. |
| 2017 NY Slip Op 00764 [147 AD3d 1313] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v M&M Medical Transport, Inc.,Appellant. |
David J. Pajak, Alden, for defendant-appellant.
Eric T. Schneiderman, Attorney General, Albany (Thomas B. Litsky of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), renderedSeptember 26, 2008. The judgment convicted defendant, upon a plea of guilty, of grand larcenyin the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting it, upon its plea of guilty, ofgrand larceny in the second degree (Penal Law § 155.40 [1]). County Court ordereddefendant to pay a fine of $10,000 and $971,267.76 in restitution. We conclude that defendant'schallenge to the factual sufficiency of its plea allocution is encompassed by the valid waiver ofits right to appeal (see People vMcCrea, 140 AD3d 1655, 1655 [2016], lv denied 28 NY3d 933 [2016]; People v Oberdorf, 136 AD3d1291, 1292 [2016], lv denied 27 NY3d 1073 [2016]), and that it is unpreserved forour review in any event (see People vLugg, 108 AD3d 1074, 1075 [2013]; see also People v Burney, 93 AD3d 1334, 1334 [2012]; seegenerally People v Lopez, 71 NY2d 662, 665 [1988]). We decline to consider defendant'schallenge as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).Defendant contends that the criminal action should be dismissed in furtherance of justice but, bypleading guilty, it has forfeited its right to raise that issue on appeal (see People v Smith, 100 AD3d936, 937 [2012]; People v Guerra, 123 AD2d 882, 882 [1986]; see also People v Harris, 15 AD3d848, 848 [2005], lv denied 4 NY3d 887 [2005]), and we likewise decline to considerthat contention as a matter of our discretion in the interest of justice (see CPL 470.15 [3][c]). In any event, the valid waiver by defendant of the right to appeal encompasses thecontention (see People v Frazier, 63AD3d 1633, 1633 [2009], lv denied 12 NY3d 925 [2009]).
We reject defendant's contention that the restitution order is illegal (see Penal Law§ 60.27 [1]; see also § 10.00 [7]; see generally GeneralConstruction Law § 37). Defendant's further contentions that the restitution order isexcessive and lacks a record basis are encompassed by the valid waiver of the right to appealinasmuch as the restitution directive was part of the plea bargain (see People v Short, 128 AD3d1414, 1415 [2015], lv denied 25 NY3d 1208; People v King, 20 AD3d 907, 907 [2005]; see generally People v Lopez, 6 NY3d248, 255-256 [2006]), and those contentions are not preserved for our review in any event.Defendant waived its right to a restitution hearing in its written plea agreement (see People v Candelaria, 128 AD3d1414, 1414 [2015]). Moreover, no objection was raised on behalf of defendant, during theplea proceeding or at sentencing, either to the court's alleged failure to follow proper proceduresin ordering restitution (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People vCallahan, 80 NY2d 273, 281 [1992]), or to the specific amount of restitution ultimatelydirected by the court (see Horne, 97 NY2d at 414 n 3; People v Favreau, 69 AD3d 1225, 1226 [2010]; People v Milazo, 33 AD3d 1060,1061 [2006], lv denied 8 NY3d 883 [2007]). In any event, we conclude that defendant'spromise in its plea agreement to make restitution in the precise amount subsequently ordered bythe court, in explicit agreement with the audit conducted by the People with respect to the sumstolen, furnishes an adequate record basis for the court's directive (see People v Rodwin,283 AD2d 242, 242 [2001], lv denied 96 NY2d 924 [2001]; People v Kelsky, 144AD2d 386, 387 [1988], lv denied 73 NY2d 787 [1988]; see generally People vConsalvo, 89 NY2d 140, 145-146 [1996]). Finally, we conclude that the amount ofrestitution is not excessive. Present—Smith, J.P., DeJoseph, NeMoyer, Troutman andScudder, JJ.