People v Eickhoff

2017 NY Slip Op 04327 [151 AD3d 1120]

June 1, 2017

Appellate Division, Third Department

As corrected through Wednesday, August 2, 2017

[*1]

The People of the State of New York, Respondent, v Helen B.Eickhoff, Appellant.

Jay L. Wilber, Public Defender, Binghamton (Regina Cahill of counsel), for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.

Lynch, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered November 13, 2014, convicting defendant upon her plea of guilty of the crime of grandlarceny in the third degree.

In satisfaction of an indictment charging her with grand larceny in the second degree and 33counts of falsifying business records, defendant pleaded guilty to grand larceny in the thirddegree. Under the terms of the plea agreement, she was required to pay restitution and was toreceive a sentence of no more than 21/3 to 7 years in prison. Defendant wassubsequently sentenced to 2 to 6 years in prison and was ordered to pay restitution in thestipulated amount of $128,876.61. She now appeals.

Initially, defendant's challenge to the amount of restitution ordered has not been preserved forour review given that she never objected or requested a restitution hearing and, through hercounsel, consented to the amount that was ultimately included in the restitution order (see People v Musella, 148 AD3d1465, 1467 [2017]; People vCasolo, 142 AD3d 1247, 1248 [2016], lv denied 28 NY3d 1143 [2017]).Moreover, her claim that she was denied the effective assistance of counsel is based on mattersregarding the restitution award that are outside the record and is, therefore, more properly thesubject of a CPL article 440 motion (seePeople v Garry, 133 AD3d 1039, 1040 [2015]; People v Davis, 114 AD3d 1003, 1003 [2014], lv denied 23NY3d 962 [2014]). Lastly, we find no merit to defendant's contention that her sentence is harshand excessive. Notwithstanding the fact that this was defendant's first criminal conviction, sheabused a position of trust by secretly taking a [*2]substantial sumof money from her employer's business over a three-year period. In view of this, and given thatshe could have received an even longer sentence under the plea agreement, we find noextraordinary circumstances or any abuse of discretion warranting a reduction of the sentence inthe interest of justice (see People vAdkins, 108 AD3d 943 [2013]).

Peters, P.J., Garry, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.