Opinion
KA 02-01960.
November 10, 2005.
Appeal from an amended sentence of the Genesee County Court (Robert C. Noonan, J.), rendered June 25, 2002. The amended sentence ordered defendant to pay restitution.
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ.
It is hereby ordered that the amended sentence so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Contrary to defendant's contention, it was not necessary for County Court, "in ordering restitution in addition to imprisonment, to consider defendant's ability to pay" ( People v. Emmi, 254 AD2d 840, 840, lv denied 92 NY2d 949; see People v. Holmes, 300 AD2d 1072, 1073; People v. Weinberg, 213 AD2d 506, 507, lv denied 88 NY2d 970; see generally Penal Law § 60.27). Defendant's remaining contention is unpreserved for our review ( see CPL 470.05) and, in any event, would not require vacatur of the restitution order under the circumstances of this case. Defendant expressly stated that he would not challenge the amount of restitution recommended by the Hearing Officer and imposed by the court ( see generally People v. Horne, 97 NY2d 404, 414 n 3 [2002]; People v. Callahan, 80 NY2d 273, 280-281).