| People v Malgarinos |
| 2022 NY Slip Op 02019 [203 AD3d 1074] |
| March 23, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Stefan Malgarinos, Appellant. |
Jason M. Bernheimer, Valhalla, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfranceso and WilliamC. Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (MichaelA. Martinelli, J.), rendered September 18, 2019, convicting him of grand larceny in the seconddegree and scheme to defraud in the first degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant pleaded guilty to grand larceny in the second degree (Penal Law§ 155.40 [1]) and scheme to defraud in the first degree (id.§ 190.65 [1] [b]). The plea minutes demonstrate that the defendant was told thatrestitution was part of his plea agreement, and at the plea proceeding, the defendant consented tothe specific amount of restitution imposed. Accordingly, the defendant waived his contentionsthat the County Court was required to conduct a hearing and to make its own independentdetermination of the amount of restitution (see People v Vazquez, 173 AD3d 907, 908 [2019]; People v Dougherty, 121 AD3d1011, 1012 [2014]).
The defendant's contention that the County Court was required to consider his ability to payrestitution is unpreserved for appellate review (see CPL 470.05 [2]; People vHorne, 97 NY2d 404, 414 n 3 [2002]; People v Totesau, 112 AD3d 977, 979 [2013]), and, in any event,without merit (see Penal Law § 60.27; People v Harris, 72 AD3d 1110, 1112-1113 [2010]; People v Henry, 64 AD3d 804,807 [2009]). We note that in the event that the defendant is unable to pay the restitution asordered, he may seek resentencing pursuant to CPL 420.10 (5) (see People v Vazquez,173 AD3d at 908; People v Harris, 72 AD3d at 1113). Dillon, J.P., Duffy, Connolly andChristopher, JJ., concur.