Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Bradlee E. BURNS, Defendant–Appellant.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered August 17, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree. Norman P. Effman, Public Defender, Warsaw (Leah Rene Nowotarski of Counsel), for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered August 17, 2012. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.
Norman P. Effman, Public Defender, Warsaw (Leah Rene Nowotarski of Counsel), for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted assault in the second degree (Penal Law §§ 110.00, 120.05[1] ). Although “[d]efendant's challenge to the amount of restitution is not foreclosed by his waiver of the right to appeal because the amount of restitution was not included in the terms of the plea agreement” ( People v. Tessitore, 101 A.D.3d 1621, 1622, 956 N.Y.S.2d 372,lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [internal quotation marks omitted]; see People v. Miller, 87 A.D.3d 1303, 1304, 930 N.Y.S.2d 143,lv. denied18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967), that contention is unpreserved for our review inasmuch as defendant did not object during the restitution hearing or otherwise alert County Court of his objection ( seeCPL 470.05[2]; see also People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132). In any event, we conclude that the People established the amount of restitution by a preponderance of the evidence, and there is no basis to disturb the restitution award ( see People v. Lucieer, 107 A.D.3d 1611, 1613, 967 N.Y.S.2d 575;see generally CPL 400.30[4]; People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.