State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 29, 2016 105923
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
MARK CASOLO,
Appellant.
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Calendar Date: September 9, 2016
Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
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Sandra M. Colatosti, Albany, for appellant, and appellant
pro se.
P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.
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Aarons, J.
Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered March 15, 2013, convicting defendant upon
his plea of guilty of the crimes of grand larceny in the second
degree (five counts) and grand larceny in the third degree (seven
counts).
Defendant, an investment banker, pleaded guilty to the
entire consolidated indictment charging him with five counts of
grand larceny in the second degree and seven counts of grand
larceny in the third degree, stemming from defendant stealing
money from numerous clients. No sentencing promises were made by
County Court. Thereafter, the court sentenced defendant to
prison terms of 5 to 15 years on each of the grand larceny in the
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second degree convictions and 2a to 7 years on each of the grand
larceny in the third degree convictions, to run concurrently.
Defendant also was ordered to pay restitution in the amount of
$1,733,000 plus interest. Defendant appeals.
Defendant contends that his plea was unknowing and
involuntary and that he should have been permitted to withdraw
his plea as he was unaware that restitution would be imposed.
Defendant failed to preserve this issue for our review as the
record does not reflect that he made any postallocution motion
(see People v Miller, 126 AD3d 1233, 1234 [2015], lv denied 25
NY3d 1168 [2015]), and the narrow exception to the preservation
rule is not implicated (see People v Lopez, 71 NY2d 662, 665-666
[1988]). To the extent that defendant challenges the restitution
order, that issue also is not preserved for our review as
defendant did not request a hearing and, at sentencing, consented
to the amounts specified to each victim indicated in the order
(see People v Hall, 135 AD3d 1246, 1246 [2016], lv denied 27 NY3d
998 [2016]; People v Gilmour, 61 AD3d 1122, 1124 [2009], lv
denied 12 NY3d 925 [2009]). We are unpersuaded by defendant's
contention that the sentence imposed – which could have run
consecutively – was so harsh and excessive so as to constitute an
abuse of discretion or warrant a reduction in the interest of
justice (see People v DeDeo, 59 AD3d 846, 851 [2009], lv denied
12 NY3d 782 [2009]; People v Provost, 25 AD3d 1016, 1017 [2006],
lv denied 6 NY3d 817 [2006]). Defendant's contention, raised in
his supplemental brief, that the plea was not voluntary because
of alleged promises by defense counsel with regard to the
sentencing concern matters outside the record and are properly
the subject of a CPL article 440 motion (see People v Trimm, 129
AD3d 1215, 1216 [2015]).
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court