| People v Vazquez |
| 2019 NY Slip Op 04733 [173 AD3d 907] |
| June 12, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Leslie Vazquez, Appellant. |
Walter J. Storey, Goshen, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (William C. Ghee of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (CraigStephen Brown, J.), rendered February 14, 2018, convicting her of driving while ability impairedby drugs, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Under the circumstances of this case, the defendant's challenge to the amount of restitutionimposed is not foreclosed by her waiver of the right to appeal (see generally People vConsalvo, 89 NY2d 140, 143 [1996]; People v Isaacs, 71 AD3d 1161, 1161 [2010]; People v McLean, 59 AD3d 859,860-861 [2009]). However, the plea minutes demonstrate that the defendant was told thatrestitution was part of her plea agreement, and at the outset of the sentencing proceeding, thedefendant consented to the specific amount of restitution imposed. Accordingly, the defendantwaived her contention that the County Court was required to conduct a hearing pursuant to PenalLaw § 60.27 (2) (seePeople v Dougherty, 121 AD3d 1011, 1012 [2014]; People v Klein, 108 AD3d 780, 780 [2013]).
The defendant's contention that the County Court was required to consider her ability to payrestitution is unpreserved for appellate review (see CPL 470.05 [2]; People v Creekmur, 137 AD3d1052, 1053 [2016]; People vWinslow, 100 AD3d 1031, 1032 [2012]; People v Isaacs, 71 AD3d at 1162),and, in any event, without merit (seePeople v Pordy, 112 AD3d 654, 654 [2013]; People v Harris, 72 AD3d 1110, 1112-1113 [2010]). We note thatin the event that the defendant is unable to pay the restitution as ordered, she may seekresentencing pursuant to CPL 420.10 (5) (see People v Pordy, 112 AD3d at 654;People v Harris, 72 AD3d at 1112-1113). Scheinkman, P.J., Balkin, Miller andHinds-Radix, JJ., concur.