Opinion
2018–02871 Ind. No. 17-00424
06-12-2019
The PEOPLE, etc., Respondent, v. Leslie VAZQUEZ, Appellant.
Walter J. Storey, Goshen, NY, for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (William C. Ghee of counsel), for respondent.
Walter J. Storey, Goshen, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (William C. Ghee of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
Under the circumstances of this case, the defendant's challenge to the amount of restitution imposed is not foreclosed by her waiver of the right to appeal (see generally People v. Consalvo, 89 N.Y.2d 140, 143, 651 N.Y.S.2d 963, 674 N.E.2d 672 ; People v. Isaacs, 71 A.D.3d 1161, 1161, 898 N.Y.S.2d 226 ; People v. McLean, 59 A.D.3d 859, 860–861, 873 N.Y.S.2d 383 ). However, the plea minutes demonstrate that the defendant was told that restitution was part of her plea agreement, and at the outset of the sentencing proceeding, the defendant consented to the specific amount of restitution imposed. Accordingly, the defendant waived her contention that the County Court was required to conduct a hearing pursuant to Penal Law § 60.27(2) (see People v. Dougherty, 121 A.D.3d 1011, 1012, 993 N.Y.S.2d 774 ; People v. Klein, 108 A.D.3d 780, 780, 970 N.Y.S.2d 75 ).
The defendant's contention that the County Court was required to consider her ability to pay restitution is unpreserved for appellate review (see CPL 470.05[2] ; People v. Creekmur, 137 A.D.3d 1052, 1053, 27 N.Y.S.3d 268 ; People v. Winslow, 100 A.D.3d 1031, 1032, 954 N.Y.S.2d 625 ; People v. Isaacs, 71 A.D.3d at 1162, 898 N.Y.S.2d 226 ), and, in any event, without merit (see People v. Pordy, 112 A.D.3d 654, 654, 976 N.Y.S.2d 184 ; People v. Harris, 72 A.D.3d 1110, 1112–1113, 900 N.Y.S.2d 137 ). We note that in the event that the defendant is unable to pay the restitution as ordered, she may seek resentencing pursuant to CPL 420.10(5) (see People v. Pordy, 112 A.D.3d at 654, 976 N.Y.S.2d 184 ; People v. Harris, 72 A.D.3d at 1112–1113, 900 N.Y.S.2d 137 ).
SCHEINKMAN, P.J., BALKIN, MILLER and HINDS–RADIX, JJ., concur.