SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
439
KA 10-01153
PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DEBRA SPOSSEY, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered January 4, 2010. The judgment convicted
defendant, upon her plea of guilty, of grand larceny in the fourth
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her,
following a plea of guilty, of grand larceny in the fourth degree
(Penal Law § 155.30 [1]). We agree with defendant that her waiver of
the right to appeal was not knowingly, intelligently, and voluntarily
entered (see People v Bradshaw, 18 NY3d 257, 262; see generally People
v Lopez, 6 NY3d 248, 256); thus, it does not encompass defendant’s
contentions that the award of restitution was not based on evidence in
the record and that County Court should have held a hearing with
respect to the amount of restitution (cf. People v Tessitore, 101 AD3d
1621, 1622, lv denied ___ NY3d ___). Defendant, however, failed to
preserve for our review those contentions inasmuch as she did not
object to the amount of restitution at sentencing, nor did she request
a hearing (see id.; People v Lewis, 89 AD3d 1485, 1486). In any
event, defendant conceded “the facts necessary to establish the amount
of restitution as part of a plea allocution” (People v Consalvo, 89
NY2d 140, 145) and thus waived her right to challenge the amount of
restitution. Even assuming, arguendo, that defendant’s contention
with respect to ineffective assistance of counsel survives the guilty
plea (see generally People v March, 21 AD3d 1393, 1393, lv denied 6
NY3d 778), we further conclude that defendant was not denied effective
assistance of counsel by defense counsel’s failure to challenge the
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KA 10-01153
amount of restitution (see generally People v Ford, 86 NY2d 397, 404).
Entered: June 7, 2013 Frances E. Cafarell
Clerk of the Court