Opinion
26 KA 16–00893
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Lisa M. BUTLER, Defendant–Appellant. (Appeal No. 1.)
ROSEMARIE RICHARDS, SOUTH NEW BERLIN, FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
ROSEMARIE RICHARDS, SOUTH NEW BERLIN, FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her upon her plea of guilty of two counts of grand larceny in the second degree ( Penal Law § 155.40[1] ). In appeal No. 2, defendant appeals from an order directing her to pay restitution to the two victims.
With respect to the judgment in appeal No. 1, we conclude that by pleading guilty, defendant "forfeited [her] right to claim that [she] was deprived of a speedy trial under CPL 30.30" ( People v. Allen, 159 A.D.3d 1588, 1588, 70 N.Y.S.3d 443 [4th Dept. 2018] ; see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982] ; People v. Walter, 138 A.D.3d 1479, 1479, 30 N.Y.S.3d 459 [4th Dept. 2016], lv. denied 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 [2016] ).
Contrary to defendant's further contention in appeal No. 1, County Court properly denied that part of her omnibus motion seeking to suppress her statements to the police. The suppression court credited the testimony of the People's witnesses at the Huntley hearing, which established that defendant was not "impaired to the level of mania or to the level where [she was] unable to comprehend the meaning of [her] words so as to render [her] statement involuntary" ( People v. Cummings, 157 A.D.3d 982, 985, 69 N.Y.S.3d 394 [3d Dept. 2018], lv denied 31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] [internal quotation marks omitted]; see People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305 [1967], cert denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157 [1967] ; People v. Case, 150 A.D.3d 1634, 1638, 54 N.Y.S.3d 475 [4th Dept. 2017] ). We perceive no basis to disturb the court's credibility determination, which is entitled to great deference (see People v. Tyler, 166 A.D.3d 1556, 1556, 88 N.Y.S.3d 724 [4th Dept. 2018], lv denied 32 N.Y.3d 1179, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2019] ; People v. Lee, 165 A.D.3d 1616, 1617, 82 N.Y.S.3d 914 [4th Dept. 2018], lv denied 32 N.Y.3d 1113, 91 N.Y.S.3d 364, 115 N.E.3d 636 [2018] ).
With respect to appeal No. 2, we conclude that defendant failed to preserve for our review her contention that the amount of restitution ordered lacks a record basis inasmuch as she "fail[ed] to object to the imposition of restitution at sentencing or to request a hearing" ( People v. Meyer, 156 A.D.3d 1421, 1421, 65 N.Y.S.3d 883 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ; see People v. M & M Med. Transp., Inc., 147 A.D.3d 1313, 1314–1315, 46 N.Y.S.3d 342 [4th Dept. 2017] ; People v. Paul, 139 A.D.3d 1383, 1384, 29 N.Y.S.3d 840 [4th Dept. 2016], lv denied 28 N.Y.3d 973, 43 N.Y.S.3d 260, 66 N.E.3d 6 [2016] ). Moreover, defendant waived that contention because she "expressly consented to the amount of restitution" ordered ( People v. Lewis, 114 A.D.3d 1310, 1311, 980 N.Y.S.2d 231 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; see People v. Wright, 79 A.D.3d 1789, 1790, 913 N.Y.S.2d 603 [4th Dept. 2010] ).